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]
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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 if any;the jury una_nirnou_sIy'fcun_d_ _proven'be_yond at reasonable doubt,?"lthat."f[_w]030eeannotdetermine how many jurors have "found the aggravation
. 3
sufficient for death,035and that-034[:'wj]ecannot determine _if,.the_jury unanimously concluded that-there w_ere'suff1cient aggravating factors to outweigh the mitigating030.circumstances.035Id; Here, De'fen'dant031sdeath,sentenc030eviolates031bothithe Sixth ai'1d.Eighth Amendments in "light of. Hurst" v. 024Fluoridat and-Hurst v. State. .Defendant031sdeath sentence violates the Sixth.Amendment~ because 'tl_1_e'tri_a_l judge,030not-thejury, made the }401ndingsoffact necessary for imposition ofa;de_a_th. sentence sentence that was not authorized by Defendan}401smurder conviction alone). After thejury made-ta.genera1030rec'o'mmendationto impose the death penalty»vvithoutspecifying the t)£'tS'iS.fOrtitS recommendation, the trial.judge found asfact that (-1) speci}401caggravating circums't'ances034ha'dbeen proven beyond _a reasonable doubt", (2)_'_those partieular aggravatingncircumstances were suf}401cSient_in the context of. D_efendant031scase to impose the030deathpenalty, and the aggravating circumstances: were030not outweighed by the" niitigating circ'un1'stances.. Defendant's 'death se}401tence.als0violates the Eighth Amendmentin light of both (1)1-Iurstv. State031sclear edict that ajury. must vote unani_mo_us_ly for the death penalty,- and (2) the 034evolving "standards of decency?031see Aikirzs y. _yl/ir'gi'rzia, :536"U,S_'.- 304, 030-31_2_ (2002),030t_hathave led to"a national" consensus that]dea_th- sentences should be imposed only after unanimous030jury verdicts. _I.Defendant031s _ jury wasnever asked to.mal B. Both Hurst v. Florida and Hurst v. State apply retroactively030to I_)efend_ant031scase030 Retroactivity principles_030do_no_t035barDefendant from seeking the030reliefnow available to 030dozens ofsimilarly024'situated.030death'row_prisoners who 'vvere"',sentenc'ed ii'1.violatio'n "ofthe United States and. .Florida Constittitions. As.explain'ed b'elo'W, the"F1'oi"ida Supreme _Coui030t031sdecisions in Asay V. State, .210 So. 3d 1.(F1a-..2016,), and Mosley v. Sfate,.'209 So.f3d 1248 (Fla. 2016)031,rejected traditionalp notions of r_et_roact_ivit'y as a._bina__ry concept and endorsed an.individua1i_zed-, case-speci}401cretroactivity approach to Hurst claims. Under an individualized assessment,__.Defe'nda,nt shouldbe afforded031 zretroactive application of.both Hurst. decisions on,three independent grounds: 034underthe. -.4 ._.._.. fundamentalpfairness doctrine, which the 030_F_lorida_S_upre_me'Court hashapplied in cases including Mosley_arz_d James" v. State, 615 So. 2d 668 _(_Fla. 0301993_)_; under the traditional=Flori=da' retroactivity analysis established in031Witt; and (3) asva matter of federa1.1avv in lightofthe United States -Supreme .Co'urt031sdecisions in,Montgomery v. "Louisiana, 136 S."Ct.'718 (2016), and Welch v, Um030t_edStates, "136 S. Ct; '13257,- 1265 (201.6). Underhany ofthose analyses,.this_.Court should reject 034partial ,1'etroactivity_,f" which violates l:ioth.the'United States and Florida Constitutions; 030 I. Asay 030andMosI'ey'.req'uire individualized retroactivity analysis for I-Iurst claims Contrary-to traditional notions of retroactivity as abinary concept024i._e_.,_a new constitutional -rule is either r_et_roactive to "all cases; or to _none+Asqy and Mosley establish that determining retroactivity in Hurst cases requires individualized "assessments rnuchin the san1ejVvay' that harmless030 error must be assessed on a 'case024by-030c"ase'.Basis.Mosley, 209 So. 3d at 1281 (034As"vv'e.deten'nined in Hurst,_ea"ch error shouldbe reviewedunder afharrnless error analysis to individuallydetermine -"whether each defendant. willreceive anew penalty phase.-031-031)'_.Individualized retroactiVity030ana1ysisis ~ne<_:essitat'ed in part030by the fact that in Mosley, the "Courtheld that the Hurst decisions may be founds 030retroactiveeither by virtue ofFlorida031"s'traditiona1Witt test, or under the separate }401indarnental fairness doctrine035.In order to assess retroactivity under the Iii11da.'m'ei1tal:fait030ness"approach,035courts . .rnust.review assess all ofthe facts of each case; In Asqy and "Mosley, theFlori'da Supreme Court suggested that courts must-fi_r__s't_ conduct an. 030individualized,assessmentin order to030decide which Hursfdecision or decisions_to_ anal'yze,for .retroactivit_y,- and "then to decidewhether to apply031the Witt, test, the }401mdamentalfaimess approach, for". both. For examp1e,_the Court assessed retroactivity in Asaj}401only as to Hurst V. Floridd, while in 030 Mosley, the Courtalso addressed Hurst.v.- "State. In MosZey,\the.Court then applied two independent ..'retroactivity analyses-024Wz'tfand?fundamentalw'fairness024andreached separate'conclus__ions unde_r_1eacl_1. "approach. Mosley,'209 So. 3d atzfl-2.031/'4024=_75.InAsay, the Court applied W_itt,030butnot030_fundamen'ta1V fairneshs, suggesting030a030case024specificreason for the 030omission. . Even in applying a Witt analysis? theiFlorida Supreme Court reached individualized conclusionsinAsay andjMosle'y as to .tlieit11ird.'VVitt prong,030which re"quiresve'xamin'ation.ofthree t}401factorsborrowed from Stovall v.~=Denno,_ -3 88 U.S. 293 (1967), and Linkletter v. Walker, 381 U,S030._61_8 (1965). In Asay, = the Florida Supreme Court030ruled that_.the1}401rst030St0vall/Linkletterfactor024thepurpose ofHurst- weighed 034in_favor035_o'f-retroactive tapplication, wliile_:in.Mosléy, the Courtruled thattthe 030purposeofthesarne Hurst decisions wei__ghed"030heavi_ly-infavor ofretroa030etivi_ty.035See Asay, 210 So. 5 II PAGE # 5 3d at. l8§.Mosley, 209 :So'._3'd at 1-278 (ernpliasis added). In 030analyzing:the second Stovall/030Linkletter 'factor024'extentiofreliance onp"re.'-'Hiirst.1aw024th'eFlorida Supreme Court fouf1clinAsay. that the030;éxter1t' of reliance on Florida-031sunconstitutional death penalty scheme weighed 034heavilyagai'nst7-"retroactive application to Amy, whi1e'in_Mo_sley, the Court reachedl the opposite conclusion, holding tha_t__the. extentfofreliance on _the__ same p_r_e'-Hurstlaw weighed 034infavor,035of retroactive application,toj_Mosley. "see Asay; 1210 so. 0303d,at.20;Mosley, -209 "So". 3d at.030.l28l.Asay and Mosley also differed as:to' the third 'Stovall/Linkletter §factor024effect"on the administration ofj1_1s'tice024f1_ndi_ngthat _i_t. weighed 034heavily against?031_retro_active application as to Asay, but i_n_favor o'f-retroactive rgapplioation as'to:l\_/Ios1ey;,_ _S_ee030 Asay, 7210 So_.- _3d at_:22; Mosley, 209j'So. 3_d at.030.."12'82'. 2. tUnder}ls(i_}i and Mosley, Defendant-is entitled to an individualized rctrdactivity- analysis- .A_n'indivi'dua1iz_ed. assessment is necessary to030determine that Defendant._is entitledto retroactivity "of the Hurst_pde'cistions under the fundamental031fairness doctrine due_ to" his repeated attempts to challenge,'Flor'ida031sunconstitutional035.capital sentencingscheme, all ofwhich were thwarted by the: Florida«. Supreme Court031spre-Hurst law; Ani-individualized assessment is alsonecessary to pdeterrnine - that'Defen_clant is separately entitl_ed.;to.retroactivity-ofthe Hurst decisions unde_r._'F1orida031sWitt test, given that the Stovall/Linkletter factors as applied030in031his case align withthe Florida Supreme Court.031s analysis in Mo031sley.;,where030,034unlikeinAsayg.refroactivity was found. .'Defendant031s'indi'vidualize'd retroactivity-assessment must, unlike in -Asay, consider his claims under both-Hurst .v.. Florida and Hurst v. State. In Asay, the Florida Supre_r__n_e_ Court limited its ' retroactivity analysis to the United _States§Su_preme Court031s_decisiorrin Hurst v.030Flbricla_030anddid030not "consider the retroactivity"ofHurst Srate._ Here, there is no usti}401c'ati_on'fo'rcabiningthe retroactivity analysis to030Hurst v. Florida. Unlike; in Asay, D030e'fen'da'nt?030s.'claims'arebeing}401ledgin030this Court after the decision in Hurst. v". State, and Defendant af}401rmativelyraises both_Sixtl1 Amer'1dfne031nt claims'under Hurst, V. Floricldand Eighth Amendment claims under.Hursfv. Slate. Whatever the Asay Court031sreasoning030-forremaining silent'on,Hizrst v. State _retroactivity, Defendant should rec_eive_ an'individna1_ized-_retroactivity _ana1y_s_i_s _of both ofthe 030Hurstdecisions. .As__ discussed b__elo_w, the absence 'o'f'anyho1ding on the retroactivity ofHz'.zrst030v.031State in Asayalso means that Asay is retroactivity ruling is applicable 030toHurst V. Florida claims. Thus, to. the extent Asay suggests that.'certain' categories of030defendantsmight be ineligible for retroactive. application of It 6 _.024-i PAGE # 6 Hurst V. Florida, that holding does not apply to -any" claimsthat defendants may raise u'nder'l.Hui's't V. 030 State. Here, Defendant has raised claims under. both Hurst decisions. 3. Pursuant to an individualized re_troactiyity analysis, Defendant is entitlctlto retroactiyity of both 030Hurst;lccisions'under' the fundamental fairness doctrine030 The _Hz,t_r_st'__ decisions apply retroactively to Defendanttunder the equitable, 034fundamental,faimess035 _retroactivity doctrine030,whichthe Floridasupreme Court, has 030ap'plied,incases such as Mosley. in: Masleyj, the'Court_exp1ained'that although. W'1"ttl'is'the.034standardl035retroactivit_y'test in Florida, "defendants may" also be entitled to retroactive application ofthe Hurst dec_isions"by-virtue Qfthe fundamentalifairness doctrine, which had.bee_n applied-in cases like James.-. -See Mosley, 209 'So.;3'd at 1274024_7_5(034fundame_ntal.fairnessalonefrnayrequire the_r_etroactiv_e applicationof certain030decisions involving-the'deatl1 penalty031f_)_".Unlike the It/[os"l=e030yCourt031sWmanalysis, which. considered.Wlietl1er'. Mosleyls sentence becariiefinal after the Rihg'de'cision as a factor-in assessing 030Hurstretroactivity; the.- _ Florida030Supreme Cou030rt031s'fundamental fairness analysis madeno distinction between pr__e_-Ring and post-030Ringsentences. "Id, 030Rather,the Mosley Court031s.separatefundamental fairness analysis focused, o__n'Whe_ther it"wo_uld be unfair to _bar Mosley from seekin_g__Hurst relief; regardless ofwhen his sentenceibecame }401nal,by virtue-_ofthe fact.tl1at Mosley034hadprevious1y*attempte'dto challenge" fFloricla031sunconstitutional capital sentencing scheme and. was 034rejectedat every tum035under the Florida Supreme Court031s}402awedpre-Hurst law." Id. at0311275_._1 .Although'Mosley was a. post-Ring case, the _Flo_rida'Supren1e 'Court031s'fundament'a1fairness approach applies_-to030pre-_1_254ingdefendants, who may also obtain.retroactive Hurst reliefon fundamental _ fairness030grounds. See id.;at.1276 .n.10303(_"030Theditfferencelbetween a 'retro"activity034approaclrunderJames _and._a__retroactivit_y approachunder astandard VW'itt analysis is thatunder James, a defendant or his lawyerwould have had .to030timelyraise a constitutional argument,030inthis case a Sixth Amendment 030argument,7before this Court!would grant relief. 030However,using _a Witt analysis, any defendant who030 31 To the extent that certainstatements inother sections o_fthe Mosley or031Amy opir1ions"imply_that no 'pre-Ring defendants can see'Hurs? relief,-7 whether under the fundamental fairness doctrine or Witt," any such.in'te'rpretation would lead to unconstitutionaliresults. United States. and Florida constitutions carmot tolerate the problematic 031co"r'1ce"pt"_of030fpartialretroactivityj? whereby similarly-situated ' defendants are arbitrarily granted or. denied the ability to" seek Hu'r'st-reliefbased "on -whentlieir _se_ntence_s_were-}401nalized. . 024__. PAGE # 7 _fa1ls within-'_th_e_ a.1nbit_ofthe retroactivity period would be entitled torelief regardlessof whetherthe. defendant':_or his or her lawyer had raised the Sixth Amendment argument}402)030,In 030otherWords, to030;the extent Mosley "stands"for the proposition that defendants 030sentenced:after Ringiarei categorically entitledito Hurst reliefunder Witt, it also stands for"the proposition that any defendant,_regardlesS of w11_en they were sentenced, ca_1_1're_ceiVe the 030sameretroactivepapplicatiqn of the Hu_r_s't decisions as a ' matter of"fundamental fairness. In assessingzfundamental fairness, the"Mosley Court explained that aniirnportant inquiry is whetherithe defendantuimsuccess}401illy.attempted "to raise a challenge to iFlorida031s'capital sentencing scheme'befo.re'Hurst' v..Florida and Hursfv. State were decided. See id. at? 1275. ln024Mcsl"ey-031s-case, the Court looked to whether he raised a challenge under Ring 034at-hisfirst opportunity," "See_id_._ If Mosleyhad raised such a challenge, the _C__ourt reasoned," it would be_:fundamentally unfair to proh_ibit_; himfrom seelcingpost030-co'nvictionreliefunderHurst,_ given thatzlie had 030accurately'anticipated"thefatal, defects in F1orida031scapital sentencingscheme even before they were recognized in the Hurst. _decis_i_on_s_. See id. The Mosley Court emphasized that ensuring fundamental fairness in assessing retroactivity outweiglied _any'St_at_e031s;in'teresti_n,'}401_na1ity031of'd_eathsentences. Id. (i030I_n_this instance. . .: the030interests030of}401nalitymust yield to 'fu'ndamenta1.fairness;035__)'. To 030illustratewhy the Hurst decisionsfshouldapply to Masleyas a matter?offun'dame'ntal fairness, 'the'F1orida'Supr'eme Court drew a historical analogy to Jarnes031s'retroactive" app1ic'ation.of the"United.. States Supreme .Court031sdecision in-Esplinosa. Id.- In James,_« the Court concluded -034thatdefendants vyl1o_had raised a claim at trial or on direct appeal that'.tl1e jury"instructi_on pertaining to the HAG. aggrayating factor was_unconstitutiona_1ly.yaguewere entitled to'the_retroactive application of f.Espinosa._035"030Id.,The_Mo'sle_y_ C_0l.'lI'l030.fh6id_that 034[t]he'situationpresented by the'Unit'ed States Supreme Courtis holdir1'g in030Humisnot 030onlyanalogous to"the situation presented by-Jmarnes, butzalso concerns -a decision of greater. }4011ndamental'importance.thanwas at-issue in James..031.031Id. The Court Wascorrect Because, under Hurst _v. Florida a_nd_I-Zitrsut030v.030State, 034theAfundamen"ta1rightto a tria1030byj_ury-under both the United Statesand Florida Constitlltions is i_rnp1icated,ja_ndiFl_orida031sdeath penalty _se_ntenci_ng= procedure has been030held unconstitutional, thereby making the maclrinery ofpostlconviction relief. --.024. .-.necessary to avoid individual instances ofobvious" injustice.035Id. (internal _quotation.'omitted_). The 3 . PAGE # 8 '_app_lication_of the fundamental fairness retroactivity doctrine thus makes as 1'nuch'.'s"en"se' fo'r..Hz2r.st030 claims as Espz030nosa;c1aims. -In~D'efendan031t-031scase, as in Mosley, the Hurst decisions should apply retroactively under t_he _funda_ni_enta_l -fairness doctrine; Defendant has repeatedly challenged Florida031.scapital.-sentencin__g__ scheme citing to the same principles underlying Appfendi,j Rz'izg_,030...Hur'st-_v'.Florida; and Hurst 12. State. The courts, however, denied himlat every turn relyingon F1orida031s}402awed.pre-Hurstilaw. On August 15,2006, Defendant }401leda Petition for Habeas _Corpus_ p_urs_uant- to Fla.-_ R. App; Pro.;; ' ..Ru1e:9.142(A)(5),jIn;The Supreme CourtjofFlorida; Appeal No. SC05-2264; L.TL Co11I031LNo::'.94-CF'- 12188, Defendant claimed he was,deni035edthe rightto ajury trial inviolation of thej5030*},A6, and 14035030. amendment to 'the.'United States Co031nstitution;'Florida031sdeath p'ena1ty"s'che'rn'e is effectivelysirnilar to 030theArizona s'ch'e'n1e030foundlvunconstitutionalby.the031Uni'ted.States Supreme Court in Ring _v.;_Arz_0302tor_za; under030Articles3 and 6, and the Clause._0303ofthe 030CvonstitutiomnofVthe_031Uni_'tedStates, Eloridajudicial030 030officersrnustapply the holdings _'ofRiug to the Florida death penalty sclheme;'Even.'sl1030ouldfthiscourt determine that the_ decision in Ring030''constitutesa ,034NewRule035the court mustretroactively-granti constitutional re1ief.to030the030defendant; The unconstitutional procedures authorized by Florida death fpenalty statute infect. the entire }401arneworkofthe trial byjury sovthat the deatl1.s_e_n_tence_ imposed 'underthestatute.must'be vacate; Florida031sc_leat_hfpen_alty scheme _'_as applied violated Defendants031 constitutionally guaranteed right to ayfair and impartial trial under tl1e_0305"034,6030034___,'89030,and 1.4035030amendntent 030tothe United_'States Constitution.becaus'e.the statute under which he was sentence, 'Florid034afstatute -921.141031030didnot meet the height and reliability requirements ofthe. capital sentencing schemeand. failed to adequately safeguard histright to a fair tn030a1034permittingunreliable ev_ide_n_ce'to_030beusecl agai'rist..Supreme Court denied Defendant-031s_Petition. In'Defendant?s Rule 3.850 mo_tion'~ar_1d'l1_is 030appealtfromythen denial of that motion030,hefargued at his _}401_rst__availableropportunitythat his 030sentenceswere_in violation ofRing andApp1~en'a031z'.Bowles, 979' So, 2dat'186.« Relying onits }402awedpre024Hurstlaw, the Florida Supreme Court affirmed the trial ll courtis "denialofthose claims,_ noting that the "court had" 034repeatedlyand explicitly rejected035those -arguments and that the claims were meritlessbecause 030-030oneof the«aggravating-gcircurnstances _;. ;. was [Defendant]031sprior convict_ion_ ofua-violent fel_ony;.035Id. at _'192_-. Under the rationale ofMosley, thes_e circu}402rnstancesyprovidea suf}401cientbasis to apply the Hurst decisions retroactively to030Defendant030,_ _.regardle__ss_ ofthe-fact that his_ sente'ncevbe'came final one 'week"before theissuance ofKing.030See: Mosley, 209 So. 3d at l276,n.l3. ' 9 .-_._ . .. Defendanthas-preservedhis challengeto Florida031sunconstitutional statute at least to the same" extent as_ Mosley, and he_ isftlius, entitled to the same 'f'undar_nental-"fairnessretroactivity as Mosley.. -~ 030I Arg_uably',_ Defendant is even more] entitled to fundarnentaléfairness retroactivity t_han,Mo_sley', who had the Vhene}401tof.the Ring decisions when he 030firstchallenged Floridafs unconstitutional 030statute. Defendant-raised030-a.challenge-toFIorida_031scapi_ta_l sentencing scheme eventhough he did not have the bene}401tofthe "United" States Supreme_Court?s 030decisionsin Ri_ng030or,Hurst'v. Florida, northe bene}401tof this Florida.Supre'rne Counfs decis'ion.in Hurst,v..State. These efforts constitutedja pre024Rz030n_geffort to, raise Ring-like challenges. "Under Mosley,_'these circumstancesprovide a=suf}401cient.basiS'toapplythe Hurst" decisions retroactivelyto;'D'efendant, regardless ofthe fact th_at:h_is-_ser_1ten_c_e becarne }401nalonly030one-weekibeforei the issuance ofRing. See Mosley; "209,S,o. 3d at 1276 n.13. Here, as the Florida "Supreme _Co_u_rt= found in Mosley, the interests of'tii1ality"must"yield to fundamental fairness. Defendanywho anticipated the defects in F1orida°s statute thatwere later articulated in Hurstv. Florida and Hurstlii. _,S030_la_t"e,should notbe denied030the chance tonow seek relief underthe Hursfdecisions. App1y'i'ng- the Hurst _decis_ions_. retroactively to D_efendant- 034in§light'oft_herights, guaranteed by the United _Sta_te_s and Florida" Constitutions, supports basictenets}402offundamental fairness,035and 034it.is}401mdamentalfairness 'that030underliesthe reasons for,'retroa'c'tiVit'y ofcertain constitutional decisio'ns_,_ especially those Iinvolvingthe deathppehaltyi031Mosley, 209 So. 3d at.T1283. '4. IDcl'cndant is also cntitlcdito retroactivcapplication of both Hurst decisions030unde"r-the traditional Witttest, pursuant_to'.an individualized analysis In030addition tothe }4011ndamenta1:fairness'doctrine, the Hizrst decisions are separately retroactive "to" Defendant under :1 traditional Witt'analysisL As ,'explained, above, Asay and Mosley. show that the- importance and weight ofeach 030ofthe Wittfactors depend "on the 'circu'mstances ofthe particular case. - Compare Asay, 210' So, 3d'17.-'-22 "(concluding as to the third Witt prong thatthe first Stbvall/Linkletter _:'factor_weighed_-034i'n_favor.031-"-o_fretroactivity,- the'seco_nd ,Stoyall/Linklefterfactor weighecl-034heavi1y- _against035:retroactivity,and the third 'Stov'all/Linkletter factor weighed 034heavily030against031?retroaclivity), "with Mosley, 209 So. =3d035at1278 (co030ncluding030as to the same third 030Wittprong that:th'e }401rsti . Stovall/Linkletter factor weighed 034heavilyintfavor035of retroactivity, the 030secondStovall/Linlrletter factor weighed 030~-030infavor035of retroactivi_ty,__ and; the third Stovall/Linkletter factor-weiglied in favorrof .1 0 | PAGE # 10 -I-__>-__* retro'activity). Here, considering the Circumstances ofthis.case_,030D'efendant031sHurst claims satisfy ' Witt retroactivity, 030Thereis no dispute that Defendant031sHurstclaims satisfythe t'1rst'two Witt prongsbecause they (1) 030arise"from decisions of the?United "States Supreme Court ar'1d'the Florida Supreme Court; aiid_(2) are eonstitutionalin nature. The only question is whether the third Witt prongiis satis}401ed.024024024i.e'.,p . whether the Hurstdeci_sions030are of 034fundamentalsign'iticanee.035asmeasured by the Stovall/Linl<1e'tt'er factors; japplied here, the Stovall/Linklettertfactors favor. retroactivity. a. Purpose of new030rule As app1_ied=t'o Defendant; the}401rstStovall/Lirzkletter nfactor024'th'epurpose ofthe Hurst decisions_'024 weighs 030in'favor_ofretroactivity; In Asay, whieh.analyzed only Hurstv. Florida, 030the.F1orida034Supreme. Court stated that the purposehof the 'de'cision,034i030sto ensure thata criminal 'defendant031sright030to a jury is not eroded and 'encroached upon by030sentencing schemes thatpermit--a higher penalty to .be imposed _ Based on }401ndingsoffact that were no_t111acl_e by the jury,035Asay, 210 So. 3d at 1.7, _In._Mo_sley, where "the Court consid__ered,both Hzmst 13. Florida and the more e)gpansive'deci"sion_in Hznrstfv; State, the Court added that_.the purpose] of Hurst v.. State was to enshrine Florida?s-034longstandiiig030history031- requiring unanimous jury verdicts to the 030elementsofa crime035into the state031-scapital sentencing: scheme. Mosley? 209.86. 3d at. 1278. InAsa}{, the Courtconcludedrthat the purpose ofHurst v_.. Florida weighs 034infavor035-ofretroactive application. Asay, ;2l0.So.- -3d'at_-'17. In "Mosley; given the . circumstanc_e__s, the Court concluded that_t_he_conibined purpose ;ofthe decisionsfin Hurstjv. Florida and Hurstv. State wei'ghed"?heavily in favor035of retroactive application. .Mosley, 209 _S"'o030.3d at "1278; Here, Defendantihas raised elaims underboth Hurst v". .Flor'z'da and Hurst v030..State. Under the decisions in Asay and Mosley,031the purpose ofthose de"cis'ions"together-weighs 034heavily035in favor of .retroactiveapp1ication' to Defendant. ..As'the'F1orida Supreme Court.emphasized, the right to atrial juryiis a fundamental feature ofthe'Ur__1ited States and Florida Constitutions and its protection must "be among the higliest priorities _ofthe _courts,- partieularlyfin capital cases. See Asay; -2l'0,'So. 3d.ati'l 8;. b. Extent of 'relian030ce'onold. rule ...A's' applied to Defendant, -the second Sfoyall/Linkletter faetor024_extentof reliance ,on,Elorida031s_. -'uncons'tituti_ona__l pre-Hurst _sche_rne024024also_weighs in favor _of-applying those decisions030retroactively. 031Tl_1edecisions'in As_ay'and_Mosleyoffer'confused_conceptions.ofthe familiar "5extent'iofreliance035 1 1. PAGE # 11 factor. As-noted above, inan. ordinary retroactivity analysis-024030y§/hctherunder. Witt or Vanyother mechanism _'that030considers_relianceetheextentfofreliance on .the law priorto the creationofthe new rule would be thefsame, given that the body oflaw that develop'ed.a'nd was appliedibefore the "new" "rule" does not change no matter. theparticular case in.which retroactivity is analyzed. But in Amy and Mosley, the _Fl_ori_d_a Spuprerne Court drew" different conclusions regarding the e_xtent_o_freliar'_1_ce on pre- Hurst law depending on.thej'datejt11e defendant031ssentence_ b'ec'ame_}401na1.2In addition, Asayyand. Mo;s"ley split"With'cacl1 other regardingjwhether good faith035should be considered inaanalyzinggtlle second 'Stovall/Linlcletter factor, which further confused the matter. ' "'In Asay, wliich considered only the 030decisionin Hiirst v, Florida, the Court saidthat the extent of reliance on-pre-Hurst law as applied to Asayfs pre-Ring sentence weighed.heavily against _ retroactivity because, b'e'fore"the issuance of"Ring;in 2002,, the Florida courts and the 'S'tate".ofFlorida had relied infg_ood'faitl1 on F'1orida031sunconstitutional d'eatl'1_pen'alty law; in"li'ght ofthe United.Stat'es Supreme«Court031sfailure to inforrnthern otherwise until Hurst v. Florida. See -id. -at 19 n-.18 (034Infact, our reliance onthe old rulewvas .wel1fplaced=up,unti1jtl1e decision-in Ring, after yvh_ich._po'_int this Court; struggled withhow Ring should be properly interpreted.in.Florida,'si'nce=,the"S1_1_preme_Court deliberately 030didnot make broad pronouncements . .. . ."")_. In'1ight'ofthat good" faith, the Asay'Court "held, the extent ofreliance factor? weighed 030fheavilyagainst031--031~retroactiveapplication ofHurstv. ..-Florida "to pre-Ring sentences; 3 In__Mo_._s030l_ey,;_the Cour_t'held_ that 034[t]he030extentof reliance031Aprongis no_ta'question of whether. -this Court -properlyor in goodtfaith relied on ,United030StatesSupreme Court precedent; but031ho_w_the precedent chang_ed'the calculus ofthe "constitutionality" ofFloridais deathpenaltyfscheme." Mosley, 209 So. '3d at i280 (emphasis addedj. "Ex'aminin'g' the extent ofreliance on pre-Hzirstlawwithout considering 034goodfaith,035the Mosley "Court concluded tllal'.~lLh6:SCCO}402dStavaill/Linkletter factor weighed *.~030infavor0317030ofapplying the I~Iurst'decisions retroactively to post4Rz031ngdefendants.030"Id. Tl_1_e_ Court_lirnited_ its _an_aly_sis_;to_'tl1e extentofrelvianee after.Ring. in light of the fact030that_Mosléy was a, _'po_st-Ring case. 0302Suc'h"a.seg_rn"e"nted 034extent'ofrehanc'e035analysis has no basis-in __W1'_tt. itselfand, as already explained, leads to arbitrary 030_030partial031.retroactivity035.resu1tsthat run" afoul [of both United States and Florida constitutions. ' --3 A_s_discussed_previo_u_s1y; this analysis in Amy was limited to Wit and doesnot have any impact on :retroac'tive application of the Hurst decisions to pre024Rz'ngdefendants under the }401uidamental'fairness__ doctrine, which was not reference in Asay. 12 ' ' PAGE # 12 ' i :_Here, this Court should consider exactly what the second Stovall/Lin'kle'tter factor requires: the. ' extent" ofreliance on F1orida031s"vcapitalsentencing scheme before" the Hurst, decisions, i.e;, 034[t]heextent" to which a condemned practice i_nfect[ed]fthe integrity ofthe'trut11-deterrnining process at_.tria1.031." __.S'z_030_ova_ll,--388 U.S._ at 297. F1orida031sunconstitutional ._sent'encing'scheme,has_nofjust be_en _unconstitutiona1 since Ring was 'decided;in 2002, it.,'has always been unconstitutionahand it has 030consistently'and'systetnaticallyinfected030the truth-deterrnining process at penalty-__ph'ase 'pr'oc'eedings ' -since the Statute was. enacted following Furman v.. 'Georgia,_ 408 U.S. 238 (1972),.'inc'luding during -Defendant-031s"trial-. AccordiI__1gly,_a__s ll/Iosley _conc_luded,_the _se_cond Stoyall/Linkleiter "factor weighs in. favor of'app1ying the030Hurst030decisionsretroactively in this 030case. Even under the Asay031s034goodfaith?031standard, the extent ofreliance .factor-Alweiglhs inlfavor"'of 'retroactivity in030Defe'r"1dant031s.case becau's'e his sentence was not final until after App1~encii.. The§F1o'rid031a Supr'eme030Courthasyet to address "the special posture of his case024'f1nalafter Apprendi, but'~before= . -Ring. "Under the Floridaisupreme Cour_t_031sreasoning for affording categorilcal retroactivity to post- Ringcases, Hurst must apply030retroactiVel_y'toall post-Apprendi cases. . Itjwas the 2000 decision-"in Apprendi, ihot Ring,'that first he1d.tha't, the Fifth and Sixth Amendments require that "any; fact.034that.'in"creases'the maximum penalty for a crime.must be. charged in an indictment, submitted-ftoajury, and proven beyond a reasonable d_o_u_bt.035~Apprendi, 53(_)'U._S,_ at .476. Inliing, the United States Supreme ,Court=had overturnedjpre-Apprendi precedent that-__liad. pre_v_io_us1_y030foundArizona.031scapital scheme constitutional. Ri1_2g,'536030UiS'.at 609. Then, in Hur.st_030,_030the -Suprerne030Court'applied the _exactjsame'rationale to031,Florida031scapital sentencing schemeand. .overt'umed pre'-Ahpprendi precedent }401ndingFloridais capital scheme constitutional. See fh.¢rsz_030,136 S. Ct. at 623. It explained: Spaziémo [v, Florida, 468 U.S. 447 (_1_984),]'and Hildivin [v.-Florida, 49_0fU.S_. 638' (l,989),] sutnrnarizedvearlier 'p'recede'nt030toconclude that030theSixth Ame_ndm030en_t.does,not require thatthe speci}401c}401ndingsautl1030oriz__ingthe imposition of the sentence of death he made by the jury.031 Hildwin, -490 U.S. at 6,40-4.1.. Their030conclusion was wrong, and irreconcilable with Apprendi. Indeed; "today is not the first time-we.have:recognized as _mucl1. In Ring; we held thatianother pre-Apprendi.decision+Walton [v. Ariz_orza], 49,7 U.S., 639 (l,99_O)~024024_couldnot 030_survi_Vejth_e 030reasoning.ofApprendi. 031[Ring,] 536 U.S. at 603. ' Hzciist, 030136S. Ct. at.623. Thus, Ring" relied on the constitutional doctrine ofApprendi, and thesame was true in Hurst; 030UnderAsay 031sreasoning, Florida courts and the State ofFlorida relied-in goodfaith 13 :""""i PAGE # 13 on its unconstitutioiial death"-sentei1cin'g sc1ietne'unti1.,tl1'e.date030the030UnitedStates Supreme Court030 decided";/ptpprendi; The extent-of-reliance factor, "therefore,-weighs in favor.030of030retroactiveapplication. c. Effect an administration of.justice- As030ap'pl'ied.toiDefendant, the third.Sfovall/Linklétter030factor024theeffect onthe administr'atio'n.. ofjustice.024'aIsoweighs in favor of app1ying'th_e;Httr_.wf de_cisions_ retroactively, As recognized in Asay, this factor. does not weigh against retroactivity unless applying'th_e_I_-Iur_s_t decisions retroactively. could 034destroythe stability ofthe law, render punishments uncertain and therefore ineffectual, and burden "thejudicial 'machinery ofour state, }401scally030and .intellectually, beyondany to1'erable_1iinit;.035030Asay,210 So. :3d"-at 20 (quoting Win,» -387030So. 2d at-929-30). In Mosley, the Court held that catélgoricallyt apvplyingithe Hitrsfdecisions retroactively to allpostaltiizg defendants, of vyhich there are approximately __1-'_75,.wou'l'd no't_'grind.'thi's state031s_udiciaryto a halt", See"Mosley, 209 So. 3d at 1281- 82. .In"'liaht'oflthaticonclusion, there can be no serious rationale.for030a.prediction.that031categorically perrnitting030the retroa'ctive.'app1icatio'n' ofthe Hurst decisions to 034allpre-Ring defendants, like Defendantglof which theresare also only approximately .1 75j,_'would tip the balance- so far in the.other . direction as to 034de_str_oy035the judiciary. Undoubtedly,retroactive030application ofthe'Hurst'decisions to pre-Ringdefendants will have- m'ore.impact on.thejadniinistration030.ofjustice than arbitrarily liinitingiretroactivilty to post-Ring defendants024butthat is not the;"te'st. Without sufficient r'ationaIe.fo'r prediictingthat 175 retroactive 'Hurst,proceedings would be manageable,030but that 175 more would -034destroy035the judiciary, retroactivity=sh_ould _not_._be denied to :pr_e-_R_ing defendants _'li_k_e: Defendant; There isno serious I adniiriistrative rationale forsuch an__a_rbitra_1fy cut-off.; Retroactive application _o'f.new'_rules affecting rnuchflarger populations have beenapproved. In "A"/[om030_gome_ry_,tl1'e_United States Supremej Court. approved ofretroactive application ofa new rule proh'ibiting_._mandator'y-life. sentences for all juvenilesewliich one study estimated could impact as 'ma031n'y'-as2,300 cases nationwide. See John R. Mills, Anna M. Dorn, and Amelia C. Hritz_,'No Hope: Re-Examining Lifetime Sentences for 030Juvenile Offenders, TheiPhi1lips Blaek Broject, available atjhttp://wwwphillipsblaclc.org/s/JLW0P42;pdf (lastf visitedjM_ay -24,-}201__'7{), In Florida, 034capitalcases make up onlya smallpercentage (0.09 percent) of" " the030171,414 crirninal cases f1le'd:in circuit court 030duringthe 'fiscal.ye'ai'._20 '14-030l5__-,,.and an-even smaller 030percentage(0.02 percent)" of't1ie.753,_01'.1 total cases }401ledin circuit court.035Asaya 210 So. 3d at 39 (Perry, I.,_ dissenting). 14 . . PAGE # 14 Applying Hurst" retroactively as -a categorical matter to all post-Apprendi cases certainly would not grind thejudiciary to a halt-. In._l\_/.[os'ley, the Florida Supreme Courtheld that categorically applying the Hurst030decisions034retroactivelyto all;post,024Rz030ngdefendants030,encompassing"15jyears031worthofdeath_ 030sentences;would not030 this tstate031sjudiciary to a halt. See Mo030sley",'209So.f3d-at 1281"-82. Extending retroactivity to Apprendg encompassing only two _add_it_ional years-031worth of"death -sentences, would nptggrind Florida031sjudiciary _to'a-halt. Accordingly,-the_ third Staval!/Lihkletter factor030,like the.}401rs031_t__twojfactors, weighs inffavor of applying the Hurst _decisions_retroactively to iDefen"dant under the, Witt.test._ ' 4. l)efend'an't:l1'a030s030"a federalright to retroactive applica'tion.of the Hurst decisions Defendant has 21 federalrigliti to__ret_ro'_ac_t_ivity'ofthe Hurst030decisions as~l1igh1ighted_,by-the United States Supreme Court__031sjrecen__t_'_decision in Morzigazrzery. -Where_a.c_on_stit'utiona_l.rule _is_ substantive; the SupremacyiClause030ofthe United States Constitutionrequires a state post-conviction .court.,to apply,it retroactively; See Montgomery; 136 S.Ct. at 73 1'-32; (034Statescannot refuse to .givei retroactive effect to a substantive constitutional right that determines the outcome ofthat challenge.030-f). In Montgomery, the Defendant vinitiated030a state post-coiiviction proceeding seeking retroactive japplication '_of.M_z'ller v_. Alabama, '132_'S. Ct. 2455' (2012) (mandatory sentences of life withoutparole? onjuveniles violates Eighth Amendment). The Loui'si'ana"Supre'1ne031Courtheld that:l\/li'lle'r was .not 030retroactiveunder its statelretroactivity030tests."The United States Supreme Court reversed, holdirig that034 .'L'ouisian"a 'could.not laar retroactivity under its state doctrines becausethe Miller. rule was substantive andtherefore Iiotiisiana-was obligatedpunder the federal Constitution to apply it retroactively on state .post-conviction review. The Hurst decisions announced two 030substantivertilesthat under the federal Constitutionlmay not be denied to Florida030defendants on 'state'retroactivity grounds030:"'First, they both held that the Sixth __ .Amenclment.r'equires that ajury" decide Whether the aggravatilig factorszhave l5e031en.pro"ve'r1'heyond a. .reasonal9ledoi1l5t, .Whetherfthey are suf}401cientto irnpose:the:death030pena1ty,and whether they are outweighedby the mitigating factors, Such, }401ndingsaremanifestly substantive; -4-See Morn030gom__ery,- 030ilsupremeCo'urt.031s-decision in Schri}030oV, }S'umnierl'in?_'5'42i:US 3483 :364 (2004),_ is distinguisliable. In .;Sitm_mer7lin, the Supreme Court applied to federal retroactivity test int-Tea_gu030e]v.Lane, 489 US 288 (1989), and determined that Ring vva_s_.not retroactive on federal habeas review becauseirequirement .15 " 030 PAGE # 15 136 S. Ct. at 734 (holding 'tha't'the' decision Whether a particularjuvenile is or is not7a person 034whose035 crimes re}402ectthe transient immaturity of youth035is substantive). Moreover, the United States- Suprcme C.0urt~has consistently app1i.ed030suc.11proof-beyond-arreasonab16-doubt.rulesretroactively to all jdefendants'._"See,-'e;g,,.Ivcm .V.I v., City ofNew York, 407- U.S.-203,f205_ '(_1972).~ Second, Hurst v. State heldthat.the Eighth Amendment requires thejury031sfact=lfindin_'g during the penaltytphase to be unanimous. Thscourtl explained that:the unanim_.ity:ru1_e is required to030 _imp1er_nent the _cons_titutiona1 mandate that the death penalty be reserved for a narrow class ofthe worst offenders? and assures that the determination.030030030expressesthe values ofthe community as they" ' currently relate to030the irn'po's030itio'no'fth'e deathpenalty.035Hz'1rs't.'v. "State, 202.80. 3d "at 60-61 (f030By requiringiunahimity-.in a- recommendation of deathfin order for death to be considered and imposed, -Florida will a_cl_1ieye_'the_ important goal 030ofbringing its capital sentencing laws into harmony yyitlivthe _direction ofthe soc'iety.re}402ectedin [the 030majorityof death penalty]. states and with federal law;031031).;As the Court made clear,030the'function,oi030the unanimity ruleis to ensure"that Floridais overall;capita1 030systemcomplies with the Eighth Atr1endment'.. See id. at.639. That"mal 4 °°"" that,th_e jury rather than tl1e_judge make" }401ndings030a'sto Whether the defe030ndant_hada prior violent. ' _jfe1ony_aggrayator was'procedura_l..rather than substantial, .But__ S_umrnerlin'did_ not review}401acapital. zsentencing;statute5like'Elorida031sthat required the jury not. only to make the "fact-finding regarding the -applicable aggravators, but alsorequire the juryto-i'nal'<'e the }401ndingsas to whether the aggrayators 030weresuf}401cientto impose the death. Moreover", Hztrs}401'unlike,Ring_ addressed the'pro'of beyond a030 reasonable doubt standardfin-addition 'to030the'jury'trialright, and the 031Suprem030e'Court,has-030always regarcled such decisionsas substantive. See Powell. the Delaware, _153.A_.- 3'03469,75 (Del; 2016) (liolding tl1at_H2trst._v. Florida is retroactively applicable under the states030Teague.-lilce retroactiyity-030. doctrine in clistinguishing Summ_er'1in.because' it only addressed the rnisallocation 'of.fac't.~f1nder030. .respo'nsibi1ity'(jud_ge «versus!jury) and not... The a'pplicab1e.burden' of.proof.035). 16 PAGE # 16 5'. 030The031United States" and Florida C0nstitutio1is',do not tolerate_'tl1é problematic conccptof -034partialretrbac'tivity035. As eiiplained, the decisions in Asay and"Mos'ley" established "a 030generalframework whe'r'eby'thef "re'troac'tivity of Hurst V; Floridaand Hurst v. State should be'analyzed'024whetherunder. the }401indarnentalfairness o_rWitt retroactivity do_ctri'nes024onVaniindividualized basis, Fo_1_1t_he_reasons'' ' explained. above, Defendant is 030entitledto 030retroactive{applicationof.the Hurst decisions based onjsuch. individualized-review. 030Inreviewing'retroactivity as030applied to Defendant,_'this Court031sl1ould'rej"ectlthe problematic concept of-034partialretroactivityg?031whereby the Hurst decisions app1y031toonly some cases on colplateral review; The concept ofpartial re_'troac_;ti_vi_ty' has no basis in the Florida-Supreme 035Court"s or. the United States Supreme 'C_fourt_031sprecedent, willjlead "to" arbitrary and unfair results; and is ,violative ofthe Eighth andFourteenth-Amendments. "See Asay, 210 So. '3d.at030;38__(Perry, 031J.a 'dissentingj (034Undoubtedlygthere will. be. situations030wherejpersons030who" committed equally violent felonies and.wl1ose death sentences became }401naldaysvapart will be..treated'differently--without: . 030justificationfrom C__our_t.031_f);The arbitra_riness_ of such a cut024offdate is apparent in this__ case,'where_ Defendant031s,'s_entenc031ewas }401nalponlyone week030before Ring.030Had the030courts dela_yed'in issuing their 030opinionsor Defendantis-attorney sought'a continuance. for only one week, Defendantwould be c'ategorica1ly entitled to relief. Such arbitrary-reasons for deterrnining whether? a defendant lives or"- dies cannot pass constitutional muster. C. The Statecannotestablish ,Atl1at';t'l1e Hurst errors iu.Defendant.031s030sentencingwere harnilcss 'bcyon(_l_a r_eas_onable _do1_1bt,- 1. State bears the burden o_£-030establishingfharmlessness: The'Fl0ridapSupreme Court has,_repeatedly_held thatthe burden is ,_on the_ State to prove, beyond a reasonable _do1ibt_,_ thati_the_.Hztrst error didnot i'rn_pactjthe_ defendanfs death 030sentence;Hurst030 'v;' State, 202 So.3d at 67-68 (034['I.030]l1eTb"urdenis on the Stat'e,_as the beneficiary ofthe error, to prove "beyond a reasonable doubt that thejury031.sfailure to unanimously }401ndall the facts necessaryvfor-= ._imposition of the death penalty'did'not contribute to [the] death _sentence.-031031)_.The 034Statebears an extremely heavy burden035.in this 'c_ontext;. Id. at 68,. A court031s_}401ndingthatjaHurst error. was harmless 'wi11be034rare§?031Kz'ng_'v. State, 21-1 so. 3d "866, "890 (Fla.030J'an.26, 2017). 1 7 PAGE # 17 ;2. The Elorida Supreme _C0urt-_'hasindi'cated thataunanimous "jury recomruenrlation is jajfactor in Hurst_ha1'Inless _erro_r_ana_lysi_s, but not necessarily a. dispositive factor: in- every case The Florida Supreme Court-has indicated "tha't:a'unanimous_jury recommendation is afactorin Hurst harmless error ana1ysis,'but not necessarily a dispos_itiv_e~factor in every case. The Court has emphasized'this';Srincip1e on s031evera1-occasions".In Hall v. LS'tate_,ftl1e. Courtjstated that a_jury*s unanimous" recommendation 034lays"a" foundation for us to conclude bey'ond.a r'easonable,'doubt035035that the Hurst errorwas harmless, and .then»-assessediother harmlessness factors, suchas the 034egregious facts035of the case, reflecting a traditional harmless error analysisthat evaluated the aggravation and mitigation. 212' So. 3d, 1001, 103465 _(_F,la.,Feb. 9, 2017) (emphasis added).. _A_gain__in King _v._ State, the Court emphasized thatthe unanir11o'us'reco'niinendation was not dispositive, but rather 034he_ginsa. foundation.'forlus to conclude beyond-=a.reasonabledouht035that'the_Hurst error w'a's§.harrnle031ss.121 l. So. 3d 866, 890 (emphasis added).- 030InWood _v.- Store, 20980. 3d.'1217, 1235 (Fla. "Jan.-$31,201-7), the Court indicated that__a_Hews? error in a unanimous_-recommendation case would-024024ifthe case were not 030alreadybeing remanded for im_position.'a.1ife_ sentence on proportionality'.grounds024requirearemand . fora new penalty-p'hase because thejury had been instructedto030conside'r'in030appropr'iate'agg_ravators. In 030Jones v. State, the Court explained thatfthe-instructions to thejury, in combination with the unanimous recommendation, allowed the Court to conclude that three ofthe-required030elements for a-. death030sentence had been sat_is}401e_'d024suf_}401ciencyt'ofthe aggravation, vveightofthe aggravation relative. to" t_l1e030.mitigation,and the unanimous recornmendation024butthat. aniindyividualizediexaminationof the .031specif1c"agg_ravatorsfound by the judge, was" still 030necessaryto determine-whether 034theremaining element: that thejury unanimously and expressly-.}401nd'allthe aggravating-factors thatwere{proven .beyond aireasonable doubt031:-031024024wassatis}401ed.-212 So..3d 321, 343-44 (Fla. Mar.32, 2017) (internal -quotation marks omitted). _T_hu_s, the Court has-made clear. that insorne unanirnous recommendation- cases the Hurst error was._notl1arm1ess.- Defendan_t031sis such a case. , ' The Hurst error _iniDeféndant030scasevsihould not be ruled harrnless beyond a030reasonable"doubt, not only due to030the problems .in'herent.'in using the advisoryjury031s'reco'mmend'ati'on to infer 'what.'fact'- 030}401ndingWouid have occurred in a constitutionalproceeding, but also because the cir'cumstances'ofthis case. re}402..e<=t.,more jthanmher. unan..i.n10uéerecommendation casesthe. Florida Supreme Coufthas iaddressed, _a reasonable probability that the..Hi¢rs't errortimpacted the sentence_;. 1 8 PAGE # 18 3.- In'D__cfe_ndant031scase030,-_-'th_cju_ry031sunanimousrccornmcndation is 030insufficientto reliably conclude that'the.jury would have unanimously found all. of the_re_quired elements030. for a 030deathpenalty satis}401edin a constitutional proceeding, p"a'rticularly'in light of the jury031sbelief thatits role?is advisory including substantial mitigation. In Defendan}402s_case,'the j__ury031s_.unanimousrecommendation is insufficient to reliably conclude - thatthe jury would have"u'nanimous1y'found all the required felements for the deathpenalty satis}401ed. in a constitutional proceeding, 'particu1ar1y.in light ofthejury031.s"beliefthat its sentencing 030role.031was advisory including substantial mitigation.- As a general niatter, itis only logica1.t11atf_a unanimous pre-.I:Iurst jury recommendation does notfserve as a complete bar to Hurst reliefunder theharmless error doctrine. After'a11,:F1oridajuries before Hizrsr,_'.inc1udmg Defendant031s',"made only "a 030generalrecommendation to030impose the death. penalty, -without deciding if. any ofthe other.required elementshad been satistiedt. In Hur's"t v030.State, the Florida ,Supre_rne Courtfheld that thejury must030render unanimous fact-}401nding,under a030beyond-a.- reasonable-doubt standard, 030onall oftl1e'required..e1ements for a death 'sentenc,e:,(l),030yV11ic_haggravating- factors'wer'e_'proven_, whether those031aggravators were__ 034sufficient035to "impose the 030death031.penalty, and '(3_) 030whether.tl1ose'agg1"avat'ors' outweighed034themitigation.202.So. 3d at 53259. The.jt1ry031sunanim'ous_ }401ndingson those elements must precede "the jury031svote as to whether to recommend a death sentence. See id, at _'57 (034[B]eforethe trial judge may consideruirnposing a sentence of death, thejury 030 in a capital case must unanimouslyandi expressly }401nd._a_lltheaggravating factors thatwere proven beyond a030reasonable doubtg unanimously }401ndthatthe aggravatingfactors are sufficient totimpose; death__,_'unani'mously find that the-030aggravatingfactors outweigh the mitigating circumstances_, and ' unanimously recommend a sentence of death.031_031).Therefore, even in cases where the jufy unanimously recommended death, th_ere;is=-__no way to know-w11ether the jury. would have unanimously found all the 030otherpreceding elements sati_sii'ed'b_eyond a_ reasonable doubt; See Hall, 212 So, 3d at _l_0_37 (Quince, -J_'., dissenting) (034Eventhough the jury unanimously recommended the death penalty, whether the jury 030 030unanimouslyfound each aggravatingfactor remains.030unknoWn.035);.Indeed, Defendant.031sjurors may030 havezreachedt a unanir'no'us overall reco1'1irnendation,_ but thereis nothing in the record tha.t'r'evea1s the. . "basis for the recommendation, and there is therefore a reasonable probabilitythat each juror, or.. groups ofjurors,'may' have based-their_ recoymrnendations on a_ differeynt ca_lcul_u_s_. Ihe. Florida Supreme Court haslmade clear that'a11.jurors mustjbe on"t_he samepage with respect to each of the- 031 "underlying elements. .19 PAGE # 19 And-as the Florida Supreme Courtgcautioned in Hurst v. _St_az030e,engaging in speculation about the_"'jury031s,fact¥}401nding034wouldbe ,_co_ntrar_y 'to_'ourjclear.precedent governing hann1ess'error.revieW.035 202 So. 3d030at'6§:;see also Mosley, 209 So. 3d at:lI284. The "reasc"ming030the'Court'supp1ied'indeclining" -to speculate aboutthe jury031s-fact-}401nding030-inHurst v; State, eventhough that case involved "a non- unanimous jury recommendation, applies equally to Defendant: Because there was no interrogatory verdict,_ we cannot determine"what agg_ravators_, if "any, the Ajury unanimously found proven beyonda reasonable doubt. 030Wejcannotdetermine _how030_rnany jurors may have foun_d the aggrayation sufficient for_ de_a'th.."W'e cannot determine_if_the.ju1_*y unanimously concluded that-Tthererwere sufficient aggravating factors to outweigh the mitigating _.circumstances. .202 So. .3d at 68. Here too,9this Court cannot determine what-agg'rav'ators' 'Defendant031s-juryfound 030provenbeyond a-reasonabledoubt, how manyjurors foundwhich _particular.aggravators sufficient for death, or how'the030juror_s030conductedthe weighirigprocess (particularly given _the uncertainty abou_t:.' 030whataggravators each.juror considered. in the 030first031place). i 'Tl1is.1i'n030certainty'-asto what the advisory'jury would havedecided iftasked with makin_g'the critical. }401ndingsoffacttakes on additional significance in light ofthe principles "articulated in the United States _Suprern_e='Court031sdecisionin CaIqZwell__v,_ Mississippi, 472 US. 320 (1985). "In Caldwell, the "Court held that a030capi'tal'sentenceisinvalid if it was imposed by ajurythat believed- that theultirnate responsibility for. determining the appropriateness of a death sentencerested, elsewhere and not030_With"tl1'ejury031..Id. at..'328030-29.The Supreme Cou'rt.'ex_p_1ained'that it',034has'a1W030a_ys premisedits capital punishment decisions on the assumption that a cap'ita1.sentencir"ig jury reco'griiz'es the gravity of its tasks andrproceeds With030-theappropriate awareness of its truly awesome. responsibility, and tl1a__t-.034it:is'_cons'titutionallyimpermissible tot-rest a'dea'thVsentence on a _det_e_rm_i_n_ation 1nade'_by a sentencer who has been 030ledto b_e1ieve_030thatthe responsibility for determining thejappropriateness ofthe defendant031s,death sentence-lies 034elsewhere.035Id. 'at_.328030024294,_"34l_(intemzil quotation..orriitted). _ Defendant-031sjury was led to believe that-:its.'ro1e in sentencing was ditninished when the-Court instructed itithat=its.sentenc_e was advisory. It.was withthese instructions030in mind,Vwhich informed.- Defe_ndant031sjury"030tlia_ttl1eresponsibility for_d'etermin'i'ng030the appropriateness of'the_ d_efendan_t_031sdeath. 030sentencelies elsewhere030,-035id._at030:303028-29,that thejurors rendered,030a unanimous recommendation030to :i'rn'po030sethe death030penalty. Giventhej_ur'y031s'beliefthat it"was not ultimately.resp'o1'i'sible' for-the031. imposition of Defendant031sdeath sentence,-this Court cannot even be certain, to "the exclusion of"a11 20' PAGE # 20 reasonable" doubt, that thejury wouId.have inade tlie-shame" unanimous re'cornmendation:'wit11out.the' Hur_st- error._. _I_n lightjof _the.prin_cip1e__s a_rti_cu_la_ted_-in Caldwell,031this Court therefore also cannot be certai_n,. tothe exclusion ofall030:reasonable doubt, _that,tl'1e 030jurywould have unanimously 034foundall of the other. required elements_satis}401'ed..And_, ofcoursegtlie Court 'cannot.._bei-030su're'thatthejury would have declined to exercise its discreticnto unanimous1y.reco'niinend ahlife sente'nce'.after'. itselfmaking the }401ndingson.the' other required elements- 030 .'Moreov_er, the jury031_sconsideration ofthe mitigation.in Defendant031s_,casemay have been 030signi}401cantlyimpacted by the j:_11ry-031s"kncVvledgethatiit was not030ultimatelyresponsible030_for_t.he'sentence. In "a" constitutionalproceeding, where thejur'y'was'=properly app'rise'd.of itslrole 'a's'fact-.}401r'1'der,the jury may have.afforded_g_reater weightto the mitigationin Defendant031-scase. As such,-it carmotbe. concludedthat a030jury would liave unanimouslyfound or rejected any speci}401crnitigators in-;a. 030constitutionalproceeding. C_f..Mil_ls;v. Maryland, 486',_Ul_S_..303067,375-84 '(l988)_; McKoy.v.'_ North .Cc030zr0Iirta_,_4'94" U.S. '433,__ 444 (1990) (both holding inthe mitigation_context that the Eighth. Amendment is violated when there is uncertainty aboutjury's 'vote).. In Hurst v; State, this Court emphasized.that'rnitigation- is an important: consideration in-030assessingharmlesserror. 202 So. 3d at, 68-69 '(030fBecaus_e'wedo not have an interrogatory verdict030commemoratingthefi_ndingsA_oftl_1_e 5 ,- . we cannot}401ndbeyonda-reasonable'_do_ub_t thatno rational as trier of fact;_:would determine that themitigation was 030suf}401cientlysubstantial031to,_'ca1l'for031a.lifesente'nce§035). In Defendahfs case, the-_c030ourtfound the following mitigating factors: (1) Defendant had an abusive.childhood; (2) Defendantfhad ahistory of alcoholism and absence of a father-"}401gure;(3)_ _.Defendar1t_031s.lack of education; (4) Defendant-031sguilty plea andcooperation with._po1ic__:_e in this and other cases; (__5 Defendant.031suse of-'in030toxi030cantsatthe time ofthe murder;-'and '(_6__).-the circumstances_' 030thatcaused Dhefendant to leave" home and his circumstances after'h'ej_l'cft home.. 030Giventhis mitigation, 034thereis a030r_easonab1e'_probability that"at least some juror's..in a constitutional030proceeding?030havingfbeen. properly advised oftheir031rolejas fact024.}401i1der'in 'deciding_Whether.- to sentence-Defendant to 030death, would have decided thatthe death- penalty shou1d.not.be'imposed. 4. Defe_nsc_ counselfs approach to diminishing the aggravating factors and .. presenting mitigation would have been different in a constitutional proceeding 031T'hejury"'sunanimous reconnriendation in Defendant031scase also does not account forthe I likelihood that defense couns'el"st approach to diininislling the weight of.the aggravating 'factors and presen_t_in_g030r_r1itigat_io_r_1at thepenalty phase would have been different had 030counselknown that the_jury, 030 21 PAGE # 21 notthejudge, would be required to unanimously agree on each ofthe elements required to impose the death penal_ty__._ The impact ofthe unconstitutional scheme rn__ay__hav_e begun as early. as jury selection for the penalty phase. Counsel may have conducted his questioningpf prospective jurors differently- had he known thatonly 030one024j'uror035ne'ededto030be". convinced, as to only one "ofthe" required elements,_ in order for. Defendant to "avoid a death sentence; During the penalty phase itself} defense counsel031s- approach 1_nay.haye been.'different"l1ad the jury, rather than the judge, been required to~unanimou_sly iindthat each speci}401caggravating factor had'heen.proven beyond a reasonable doubt. Indeed, ina _ constitutional_ proc'eeding",__defense-counsel. may have-successlfulilyi diminished or eliminated some. aggrava030t0rs.. jDef_en_se counsel031__sapproa_ch_-may alsoihaye be_en_diff_erent had-'_the jury, as opposed to the judge, been required to030unanimously make the 034sufficiency035and 034insuf}401ciency035030fmdingsregarding- the aggravating factors; In addition,031c'ounse1031sapproach to the mitigation mayhave differed in a. penalty rphase Wl1eretliejury"rendered the }401ndings-regardingthe weight. ofaggravation"-relative to, mitigation. 'Counsel031stliinkingalso may have been impacted had he-"known the jury; wouldbe. 030instructedthat it was entitled" to recommend alife sentence even 030ifit had una_n_imo_us1y agreed-'th_a_t_'al_l_ _of the other elementsfor a death sentence were satis}401ed._Counse1'may'have. given different advice to Defendant?035andtlie 030decision024making030may have been different. ' Giventhose and other uncertainties abo"ut.the.Hur035ste'rror031sirnpact030or'1co031unsel.031s"strategyand presentation, thejuryis unanimous recommendation does not allow. this Courtto reliably conclude that thojury would. have unanimously made-zil1.oftheo.reqoired }401ndingsoffact .iI..ia constitutional proceeding. Inthis regard, an_evidentiary'hearing is necessary to establish030how counse1031sapproach. mayhavedifferedin a 030post-Hurstpenaltyphase. 5. The030unanimous. recommendation.does not account for 030the-030possibility'_tl1at"the- court may have.'exe_rcis_e_d_ its discretion-to impose a__ life sentence if the court was bound by-the jury031s}401ndingson each of. the elements ,.The jury031sunanimous recommendation also does not account for the-possibility030thatthe ;se1_1tenci_r1g court mayhave _e_Xer_c'ised-its discretion to__ impose a life sentence if the courtliad been bound by _the jur_y031_s}401ndingsoneach of the elementslrequired 030fora.4death.sentence, rather than'the' courtisown }401ndingson those (elements. "See Hurst v. State, 202 So. 3d"at'57' (noting that nothing in Hurst has" dimi_nished.034the"right" ofthe trial court,_ even upon receivingga unanirno'us030recoi"ritnendation 22 PAGE # 22 ' for death, nto-impose "a" sentence ofvlife.?031);Fla. Stat". § 921.'141(3)(2) _(revised'- Florida capital sentence. statute providing that, even if the j_u_ry recommends death, 034thec_o_u_rt-,_ after considering each ,aggravating030f_actorfound by the jury and al1Lthe'.n1itigating circumstances, m_ay.i_mp_osc_'a' sentence of life imprisomnent_,'without thepossibility ofparole OI"8..SCI1t6I1CC of030death.The court. may consider only an aggravating factorfthat was unanimously found to exist by the jury.035).The Hurst. decisions- ~haVe'fun_da_menta_11y' altered the source of infor_r_nation_upon_ whichjudges are required to deterrnine whetherjto"imposela.1ife sentence. as a matterof discretion; . Before Hzrrszg judges first rendered 030}401ndings'on"'each.of the elements'r'equired to impose 030a death s'entence, "and.-ifthe court found030those'requirer'nen'tsfoi030the death penalty were satisfied, the 030judgethen deoided,'based on his own }401ndings,whetherto impose a death sentence or life sentence. T_ha_t_030iswhat occurred here: thejudge made }401ndingsand-then, based on tl1o_se }401ndi_ngs,_decided't_hat'a death sentence was030wa_rrant'ed.However, after_Hurst, "juries now make the underlying }401ndingson the030. _ elements required to impose death. Ifthe jury finds that the requirementsfor-'the' deathvpenalty are 's'a'tis}401ed,_"the_judge still decides Whether to sentence thedefendant to death or "exercise his or her" discretion to impose alife sentence, but n_ow-based on the jury031s}401ndings.030Thus,it is uriknown .- wl_1ethe_r Defenda_nt031s_judge would_have'exercised'his discretion-to impose a;life sentence innthe same way if lieiwas b_oundjby the j_ur_'y031s,'underlying.}401ndings_,;ratl1erthan his own'._ "For _exan1ple5 the'7j_ur_y"s, }401ndings031in a proceeding that'fc'o'm=plied-with Hurst may have yielded a lesser"number ofaggravators than'the-judges }401ading's,_winch may have led theajudge to "decide that 030a life sentence was'appropr'iate.. The juryis }401ndingsmay have also yielded different.-034suf}401ciency031-031and -034_insuf}401jci_jen_cy035dct'errni_nati_ons than tho_se.m_ad_e_ byf.D"_efendant031s_j_udg_e.; Ar_1djt_hedjury_may haye made _d_ifferent_f1_ndings regarding the relative weightjpfthe a_ggravatorsfofmitigators. Whereas030 Defendantis jnudgefwasyboundy only030by.'his'oWn'}401ndingsonthose elements in determining wlrether-to 030exercisehis discretion to impose a.life sentence, thejudge in a constitutional proceedingthat complied with Hurstwould he required to exercise his discretionin the "context ofthejury031s}401ndings, nothis own. 030The-_juryis unanimousrecornrnendation thus does not allow this Courtto reliably . conclude that=_'th_e,re is no reasonable probability that thejudge _would_.,1_1av_e ir_npos_ed'a life se_ntencefif' bo_un'd'by the jury031s}401ndingsrather tl1an.his'own'}401ndings. 6_.- 030Tothe extent the State may argue _tl1at"the Hurst030er_ror.is_031l1arjmI'ess'due to", the- judge031s}401ndingof certain __aggravators_030basedon prior or_contemp_oraneous convictions, the Florida Supreme Court has explicitly rejected that a_rgu_ment: 23 ' PAGE # 23 To the extent" the State __may _argue_ that t_1.1_e'_Hu_rs_t error is_;_ren_d_er_ed_ __h_arm_l_es_s by the fact that, amon_g_the aggravators applied to_Defendant; were those based on contem_poraneous'_andpprior. felony co'nvictions;.tl1e Florida Sup030rern'eCourt has rejected the idea that..a.judge031s030fii1dingofsuch ag'grava030tors'iszrelevant in 'the.harmless-error analysis ofHurst claims, and has granted Hurst relief despite the presence o'fs_u_ch __aggrayators,030See, e_.g;,- Fra_z2k_lin'v. State, 209 030_So_.3d 1_241,;1248 (Fla.- -2016_)' (rejecting 034theState031s'contention_that_E7anklin.031sprior 030convictions,for other violent felonies insulate Franklin".s death sehtencefrom030Ringtand Hurst .v. Floridafi). Notably,_V'the Florida Supreme Courtfound'tlie Hurst errornot hamilessin Mosley despite the factvthat the judge inthat case had found a contemporaneous'felony'aggravator. 030Mosley,209 So. 3d at:'1256.- Thesame reasoning _sho_ul_d=app'1y.in DHefendan't031scase,- 7. This_C030ou'rtshould" reject any sug030g030_cstionV.insome prior cases 'that"aii advisory030V "jury031sunanimous recommendation is a_ facto'r030to_considerin Iiurst harmless035crr.or- _a_nalysis_ because such reliance violates 030theUnited States Constitution As noted above, this Court can hold tha't_At_l1e.Hur_st error. in Defendant031scase was not harmless beyondareasonable030doubtwithout contradicting any of030the'F1oridaSupreme Court031sdecisions in. 030otherunanimous-Irecomniendation cases. Fir'st,..Hur030Sr'claims require individualized liarrnless error review, and the burden is on-the State to_'prove in eachparticular case that the Hz':rst« errordid not: :impact- the sentence. Second, while the Florida-Suprerne "Court hasruled Hurst errors harmless in "some Auna_nimo1_1s,-recommendation cases, the Court" has also indi_ca_ted'.that a unanimous jury "recommendation is.not'b_y itselfdispositive ofthe harmless erroranalysis. Third? "inlight ofthe individual circumstances 030ofthis case", and tlie-instructions to the jury, the Court may ho"1d035th'at _D_efendant031sHurst030error was not harmless 034beyonda reasonable "doubt Without contradicting any ofthe Florida Suprenie Courtis rulings in other cases.- Thatabeing said, although it-isnot necessary for resolving theharmless error i'nqui__ryji'n Defendant-031_ys030favor,031t_here;a_re s'ign_i_f1ca_nt'r_eas_on_s grounded in -federal 030constitutionallaw that this Court should rejectany relianceon the advisory"j_ury"s yunaninious recommendation. As previously explained, this Court c':'annot' reliablylinfer¥fr'o'r'n the 'unanirnousj11ry .recommendation' in a particular case that that the same jury would have unanimously.found.that. each. ofthe-required elements _f__or_ _a de_a_th sentence were sati_s}401e'd_in_a constitutional proceeding; ~24 S_V_"030"'""'"'' ' PAGE # 24 030particularlyin light of Caldwell031sholding about the impact. of a030j'ury031s'be1i'efthatits (1eath~SeriteI"1cin_g -role is minimized, i.e.-, :tl1atju_rorsldo'._no_t have the ultimate__responsibility_forjdeciding life or death, The jury031srecommendation also does not account for the likelihood.that'fdefense counsel031sapproach, .may have been different in a constitutional proceedirig',_ or-thatthe court r'na'y.ha've'_ decided to impose alife sentence ifboundby jury }401ndings,rather than its own. . Inaddition to.those previously-. discussed considerations, reliance onhadyisoryjury recornniendations in conducting l~Iurs_tharmless error analysis violates'j'the United. States Constitution. Under the Sixth Amendment, any reliance on the jury031_s'recornrnendation.is problematic in. light ofSullivan v. Louisiana, 508 U.S..275,'279-.80 (1993).. In Sullivan, the Supreme Court emp_h_a_si_ze_d that 034[h]ann'l'e_ss-err__or_r_e\__zie_v_v.'lo_ok_s, -we have said, _to"the_ basis on which the juryactually rested its verdict?031ild. at.'279= (empl1asis'.in original) (intemalquotation, marks, omitted); In D_efenda'nt"s: and other030030p_re-Hurst.iFlorida"casesgtherewas no030constitutionally031validjury verdict on-the critical l'1ndings':offact]required to impose a death sentence. Sulliv'an requires -that, "before"-"a. reviewing courtmay apply harmless error analysis,-030theremustbe a.validj_ury_ verdict, grounded-"in the pro_of-beyond-a-reasonable-doubt,_standard.; ._Alth0u_gh_Sullivan030addressedajurylverdict as to guilt, the logic ofSullivan 030applies'_'equal1y'_in the capital pena1ty024p_hasecontext: T1'1e.'inq'ui'ry', in other v'siords',035'is".notWhetl1'e'r,;in atrial that occurredwithout thererror, a.guilty 030verdictwould surely have been r'endered,030butwhether. the_guilty v_e'rdict_actuallyrendered in, "this trial030was 030surelyunatt_;ributable_ to the 030error;-That mustjbe so, because to hypothesi'ze'_a, guilty yer_di_ct.that was never in fact r_ender_ed024noInatterhow i_nes_c_apable.tl_1e}401ndingsto support that verdict might-be would violate the jury-trial guarantee Id. at 279-80. InD_efendant031scase to'o,iany-_reliance on his advis030oryjury031s.un'anirnousrecommendatiori would be a violatio'n_ofthe SiXtli.Arnendrn'ent. 030Reliance,upon an advisoryjnryis unanimous recommendation also ='ru'ns afoul ofthe Fourteenth Amendment. The Due Process Clause requires that, in all criminal prosecutions,--the State mu_st_ prove each element beyond a reasonable doubt. In re, I/Wn_sh'ip, ~«397'U.S. _358,364_ (1970). This requirement" attaches to any factual }401ndingnecessitated _by'the;.Sixtli Amendment: In Sullivan, the Supreme] Court observed that"030lthe'035Fil031th"Ar'nendment..req_ui"rement.ofproofbeyond aireasonable doubt andthe Sixth Amendment 'require'ment'.of ajury-verdiict are 'interrelatedi035508030U.S.at 278. 034itWould -not satisfy the Sixth Amendment to have ajury determine that the defendant is probably guilty,-and I then leave it up to "the."judge to determine (as Winship requires) whether he'__is' guilty bey_ond.a- 25 PAGE # 25 reasonable doubt" . -. . . In other words,030thejury verdict required by the Sixth.-Amendment is a verdict of guilty beyond a'reasonable_ doubt.035_Id. This requirement-is c1ear1y.;in_corpo_ratedijntothe: Hurst line 'o"'fVcases_,. beginning with /_1pprendi,..'500'U'.S. at 476' (034[A]ny.fa'ctthat incr'eas'es the penalty .030for030a"c'ri'me'bey'ond the prescribed statutory maxilmum must.'b031e'submitted"to ajury, and proved beyond _a-reasonable doubt?) '(er_np'ha_s_i__s added).; __Any reliance _upo_n thetjury_recornrnendationreqnires the .und_erpinnings'of the recommendation t0"be madebeyond a reasonable doubt. Because'Florida031s-pre- Hurstjury determinations,including the030unanimous advisory re'commendation'here',_ did not "incorporate the beyond-aéreasonable-doubt030standard, itwo'ulc'1' violate due 'proc'e'ss'to rely030onlthem. 48.-_ To the.extent'tl1is_ C_ourt.-n_ee_(_ls .furthe__1r'__ev'_i'de_nee that "the Hurst error in . 'Defendant031scase cannot be found:-harmless, a hearing-issappropriate to probethe 030impactof the Hurst error on defense 'counsel031sstrategy-and.presentation 030Forthe reasons "above,-this Court shouldznot rule that the Hurst error in Defer'1dant.031sc'ase-was . "harmless beyond a reasonabledoubt, because any such ruling on the_ present record030would be based. .o_n imp_errniss_ible_.speculation.-_ To the extent this Court; needs }401irther.evidence Zthatfthev error_s'were:no_'t .harmless, -ahearing is appropriate to probethe impactofthe Hurst, errors _on defense {counsel031s strategy and pr'e"s'eiitation.. "The Florida Supreme Court has 030approvedofsuch hearings-"in siinilarii contexts. In Meelrs v. Dugge1j,=576 So..'2d 7.13, 716 (Fla. .1991), the Court, while considering aihabeas :_petition raising a claim under. Hitchcock _v.- Duggar, 481 U;S.031393(1987), determined that the030: De_fendan_t030wasentitledto. an_'eyidenti_ary hearing _on.t_h_e issue of'harml_es_s error1and"rernand_ed. Here, as V.i'n'M'eeks,' this Court should allowa hearing so thatfit canmake }401ndingsof fact reg_ardin_g' harmlessness. At a hearing'_ on whether034the'Hurst error in his.pe'na'lty[phase was harmless beyond 'a' reasonable doubt," Defendant could present; evidenee, axnongother things__,_ that defense 'co030un's'e1.031s= approach to diminishing.the weight ofthe aggravating-factors would have been different had counsel known-that the jury,.n_ot' the judge, =wou_ld nialie the critical }401ndings,_oVfjfact.- ' For instance, a defense co_unsel031s__entire approachnwould have been different-"had the jury; as opposed to thejudgegbeen required. to make the 034suf}401cienc_y035and:034insuf}401cienc_y7031}401ndings.Counsel would have given different 030adviceto Defendant, and the de'cisio'n024'rnaking"in this casegwould have been different: This is especially true inlight ofthefact that thejury-031sconsideration of the evidence" is different-"if the jury is required to make the sentencing }401ndings,instead030of making only an advisory recomrnendation; _See Caldwell, 034_472U.S. at 328929 '(re__cognizing signi}401cantimpactjofa_ j_1_1ry031sb_elie_f- '26 i. ' PAGE # 26 that the ultimate responsibi1i_ty.for determining whetherta defendant will bessentenced to death lies elsewhere). A hearing is ther_efo_re__appropriate_'to evaluate the effect of.the_'__statute inv_aI_ic1_a_fed' by. Hurst o_n030counsel031s"development ofchallenges to aggravation, mitigation,_and defense-Vpenaltyephase. theories atithe sentencingfarid resentencin'g;'. co'unsel"s 030adviceto"tl1e client; investigatiorrg "arid the: decisionsof counsel and the client. I]_I._ Conclusion030 For thettiforegoingbreasons, this Court shouldvacate Defendant."s deathfsentence and either030 impose 030alifesentence or conduct a newpenalty phasethat complies 'with.'the"Hur'st decisions. Dated: June 13, 2017 030 Respectfully submitted, , " ' _F cis Jerme024Sh_,Esq. TFl'a. Bar No". -292524 644 Cesery030Blv'c'l.,Su'ite:.250 Jacksonville, FL32211_ Telephone: (_904)_399-0301966 Fax: (904) 399034-48_66Z ,. legal@_atto'rne'ysh'ea.com ' Atty. for-Gaxy-.Ray Bowles CERTIFICATIONS OECOUNSEL "Pursuant to Fla030.R.-Crim. counsel: certi}401estha_t.tl1e motionfor post.-conviction relief_,_' }401ledpursuantto Hurst Y.030Florida and Hurst V. State,-has been discussed withbefendant and that "counsel has" complied with Rule 4-.l.4-of-tlie Rules of Professional Conduct, and counsel certi}401esthat- me motion for post-conviction relief is }401ledin, V I 030}402int:A. I .. Frncis Jerom ' ea__,.Esq. ;27 030 024"_'"035 PAGE # 27 "CERTIFICATE OF SERVICE 1; Francis Jerome Shea? herebyfcertify.thz_¢.on June 13030,2017; I servec_i'this'_.}4011ingby'e1eciro1iic transmission via the e-portal toi.As'sistant State Att(m0301e'y'Mere'dithCharbula at 'mché1'[email protected]'et; Assistant'.Attorr'1e'y_ General Charmaine Millsaps at 'Charmaine.mi1lsaps@my}402orid_alegal.com;030Justice Administrative Commission, ple2_idir_1gs'@justiqeadminorg; 'Ga1j_yf_R__z_1y:B_ow1es, #086158 Florida State Pris_oI_1,- 7819 NW 228th Street, Ra_iford,_F1orida 32026-4000.. __ - iL._!7._ I . ' Frances JE'1¢ome,S ea,~l'Esq._ . 28 030. ..._. PAGE # 28 Filing # 58222215 E-Filed 06/26/2017 09:26:00 AM IN THE CIRCUIT COURT, FOURTH JUDICIAL CIRCUIT, IN AND FOR DUVAL COUNTY, FLORIDA STATE OF FLORIDA, Plaintiff, v. CASE NO.: l994024CF024l2l88 CAPITAL CASE GARY RAY BOWLES, Defendant. / STATE031SANSWER TO DEFENDANT031SSUCCESSIVE RULE 3.851 MOTION FOR POST-CONVICTION RELIEF IN LIGHT OF HURST V. FLORIDA AND HURST V. STATE COMES NOW, the State of Florida, by and through the undersigned counsel, and hereby responds to Bowles031Successive Rule 3.851 Motion for Post-Conviction Relief in Light of Hurst v. Florida and Hurst V. State (034Motion035)filed June 13, 2017. This Motion is meritless and should be denied. FACTS AND PROCEDURAL HISTORY At some point in the evening, appellant stated that something030inside 034snapped.035He went outside and picked up a concrete block, brought it inside the mobile home, and set it on a table. After thinking for a few minutes, appellant picked up the block, went into Hinton's room, and dropped the brick on Hinton's head. The force of the blow caused a facial fracture that extended from Hinton's right cheek to his jaw. Hinton, now conscious, fell from the bed and appellant began to manually strangle him. Appellant then stuffed toilet paper into Hinton's throat and placed a rag into his mouth. The medical examiner testified that the cause of death was asphyxia. Bowles v. State, 716 So.2d 769, 770 (Fla. 1998). 034Appellant pled guilty to premeditated first024degreemurder. Following a penalty024phaseproceeding, the jury recommended death by a vote ACCEPTED: DUVAL COUNTY, RONNIE FUSSELL, CLERK, 06/27/2017 09:01:29 AM PAGE#29 of ten to two.035Td. The Florida Supreme Court affirmed the conviction but reversed and remanded for new sentencing. id. at 773. On remand, there was a unanimous recommendation for the death. penalty. Bowles v. State, 804 So.2d 1173, 1175 (Fla. 2001). In imposing the death penalty the trial court found. the following five aggravating circumstances: (1) Bowles was convicted of two other capital felonies and two other violent felonies; (2) Bowles was on felony probation in 1994 when he committed the murder as a result of a July 18, 1991, conviction and sentence to four years in prison followed by six years probation for a robbery he committed in Volusia County; (3) the murder was committed during a robbery or an attempted robbery, and the murder was committed for pecuniary gain (merged into one factor); (4) the murder was heinous, atrocious, or cruel (HAC); and (5) the murder was cold, calculated, and premeditated (CCP).... The trial court assigned great weight to the HAC and CCP aggravators, significant weight to the robbery-pecuniary gain aggravator, and some weight to the fact that Bowles was on probation for robbery at the time of this murder. The trial court rejected the two statutory mitigators advanced. by Bowles: (1) extreme emotional disturbance at the time of the murder and (2) substantially diminished capacity to appreciate the criminality of his acts at the time of the murder. The trial court found and assigned weight to the following nonstatutory mitigating factors: significant weight to evidence that Bowles had an abusive childhood; some weight to Bowles030history of alcoholism and absence of a father figure; little weight to Bowles031 2 PAGE#30 lack of education; little weight to Bowles030 guilty plea and cooperation with police in this and other cases; little weight to Bowles030use of intoxicants at the time of the murder; and no weight to the circumstances which. caused. Bowles to leave home or his circumstances after he left home. The trial court concluded that the aggravating circumstances overwhelmingly outweighed the mitigating circumstances. Ed. at 1176. The sentence was affirmed. lg. at 1184. Bowles031petition for writ of certiorari to the United States Supreme Court was denied June 17, 2002. Bowles v. Florida, 536 U.S. 930 (2002)(Mem.). The Florida Supreme Court affirmed the denial of Bowles031post-convictions claims. Bowles v. State, 979 So.2d 182 (Fla. 2008). Bowles filed a petition for writ of habeas corpus, which was denied. Bowles v. Sec031y, Fla. Dep031tof Corr., No. 3:O8024cv02400791024HLA,affm031d608 F.3d 1313, 1317 (llth Cir. 2010), cert den. 562 U.S. 1068 (20l0)(Mem.). ARGUMENT This Motion purports to raise a claim for relief in light of the United. States Supreme Court and. Florida Supreme Court decisions in Hurst. Hurst v. Florida, 136 S. Ct. 616 (2016); Hurst v. State, 202 So.3d 40 (Fla. 2016). However, under controlling precedent, Hurst is not retroactively applicable to Bowles because his judgment became final prior to the issuance of the decision in Ring. Ring v. Arizona, 536 U.S. 584 (2002). 3 PAGE#31 Accordingly, the successive post024convictionmotion should be summarily denied. RETROACTIVITY AND CONTROLLING PRECEDENT A judgment and sentence become final 034onthe disposition of the petition for writ of certiorari by the United States Supreme Court, if filed.035 Fla. R. Crim. P. 3.85l(d)(l)(B). Thus, Bowles031judgment became final June 17, 2002. Bowles v. Florida, 536 U.S. 930 (2002)(Mem.). In. }401ning,the United States Supreme Court held that the portion of Florida's capital sentencing scheme that required a judge, rather than a jury, to find each fact necessary to impose a sentence of death was unconstitutional in light of Bing. nnisn, l36 S. Ct. at 624. The Florida Supreme Court further held 034jurorunanimity in any recommended verdict resulting in a death sentence is required....035nninn, 202 So.3d at 59. In Schriro, the Supreme Court determined that Bing was a procedural rule and did not create a substantive constitutional change in the law because it only 034alteredthe range of permissible methods for determining whether a defendant's conduct is punishable by death, requiring030that a jury rather than a judge find the essential facts bearing on punishment.035 Schriro v. Summerlin, 542 U.S. 348, 353 (2004). Thus, Bing 034announced.a new procedural rule that does not apply retroactively to cases already final on direct review.035ig. at 4 PAGE#32 358. Since ging is not retroactive, gurst is also not retroactive under Federal law. In gsay, the Florida Supreme Court held that }401urgtis not retroactive to any case in which the death sentence was final prior to the June 24, 2002, decision in Bing. Asay v. State, 210 So.3d 1, 22 (Fla. 2016). The judgment in gsay became final October 7, 1991, and thus was not eligible for any relief under i. E. at 8. The Court in gsay exhaustively discussed retroactivity and used }402ittas their standard for retroactivity analysis rather than the federal standards of Teague. gsay, 210 So.3d at 16; Witt v. State, 387 So.2d 922 (Fla. 1980); Teague v. Lane, 489 U.S. 288 (1989). The }402it;analysis 034providesmore expansive retroactivity standards than those adopted in Teague.035gsay, 210 So.3d at 15. Thus, even if a defendant had a right to gurst relief under federal retroactivity, it would grant him no more relief than already contemplated under the }402it;standard articulated in gsay. And as the Court concluded in gsay, retroactivity under }402it;does not apply to cases where the death sentence became final before the issuance of }402ing.id. at 22. After gsay, the Florida Supreme Court held in Mosley that any relief pursuant to the decision in }402urstis retroactive only to cases that became final after Bigg. Mosley v. State, 209 So.3d 1248, 1280 (Fla. 2016). In Mosley, the Court addressed 5 PAGE#33 the fundamental fairness argument like the one raised in games. ;g. at 1274-75; James v. State, 615 So.2d 668 (Fla. 1993). In games, because the defendant 034hadraised the exact claim that was validated by the United States Supreme Court in Espinosa, 030itwould not be fair to deprive him of the Espinosa ruling.031035 Mosley, 209 So.3d 1275, quoting games, 615 So.2d at 669; Espinosa v. Florida, 505 U.S. 1079 (1992). Similar to games, during the fourteen years after the decision in Bing, Florida's capital defendants whose sentences were finalized after ging raised and were denied relief pursuant to Eing until the Supreme Court's decision in }402ggst.Mosley, 209 So.3d at 1275. As such, the Florida Supreme Court held in Mosley that 034fundamental fairness requires the retroactive application of }402ugsg035to certain cases in which the sentence was final after ging. gg. However, the Court has not extended the concept of fundamental fairness in the Ring/Hurst context to any cases in which a death sentence was final before ging, nor has it granted relief under }402urstto any pre0243ingcases. In Mosley, the appellant was entitled to }401urstrelief because the jury recommended a sentence of death by a vote of eight to four and because the sentence was final in 2009, which was after the 2002 decision in Eing. gg. at 1283-84. Again, the Florida Supreme Court has consistently denied extending }401urgtrelief to defendants whose death sentences were finalized prior to the decision in Eing. 6 PAGE#34 Additionally, this case is also distinguishable from Jami because unlike Jeni, Bowles did not raise the Apprendi/M issue at the first available opportunity. In Jami, the defendant objected to the constitutional issue at trial, then argued it again on direct appeal. Jami, 615 So.2d 668, 669. Bowles claims 034hisfirst available opportunity035to argue that his sentence was in violation of M and Apprendi was during his 2006 habeas claim. Motion at 9; Bowles, 979 So.2d at l82. However, Bowles did not object at trial or raise the issue on direct appeal, which was decided October ll, 2001, rehearing denied January 10, 2002, despite Arendi having been decided June 26, 2000. Bowles, 804 So.2d at ll73. Nor did he file a claim after the June 24, 2002, decision in M. It was not until August 29, 2003, that Bowles raised the issue when he filed a motion for post024convictionrelief, which was denied by the post024convictioncourt. Bowles, 979 So.2d at 186. Unlike Bowles031assertion in his Motion, at no point has the Florida Supreme Court determined that retroactivity 034requires individualized assessments.035Motion at 5. Quite the contrary, the Court has rigidly adhered to their bright line rule using the Kig decision date as the cutoff point for retroactivity. Thus far, the Court has failed to extend % to twenty024one cases, including my based solely on the fact that the 7 PAGE#35 judgments were finalized prior to the decision in Ring.1 The Florida Supreme Court has consistently held that sentences that were finalized prior to the decision in Ring are not entitled to such relief. Bowles argues that .Apprendi, which. was decided. June 26, 2000, rather than Ring, should be the line for retroactivity, should there be one. Motion at 13; Apprendi V. New Jersey, 530 U.S. 466, 476 (2000). However, Apprendi has not been basis for any Florida Supreme Court Hurst relief decisions. In fact, the Florida Supreme Court specifically declined to extend Hurst to Lukehart, which became final June 25, 2001, which was after 1 See Zack V. State, No. SC15024l756,SC160241090,2017 WL 2590703, *1, *5 (Fla. June 15, 2017)(sentence final in 2000); Zakrzewski V. Jones, No. SC16024729, 2017 WL 2290077 (May 25, 20l7)(sentence final in 1999); Oats v. Jones, No. SC1702468,2017 WL 2291288 (May 25, 2017)(sentenCe final in 1985); Marshall V. Jones, No. SCl6024779,2017 WL 1739246 (May 4, 2017)(sentence final in 1993); Rodriguez V. State, No. SC15024l795,2017 WL 1409668 (Apr. 20, 2017)(sentence final in 1993); Willacy V. Jones, No. SCl6024497,2017 WL 1033679 (Mar. 17, 2017)(sentence final in 1997); Suggs V. Jones, No. SC160241066,2017 WL 1033680 (Mar. 17, 2017)(sentence final in 1995); Lukehart V. Jones, No. SCl60241225, 2017 WL 1033691 (Mar. 17, 2017)(sentence final 2001); Cherry v. Jones, No. SC16-694, 2017 WL 1033693 (Mar. 17, 2017)(sentence final in 1990); Archer V. Jones, No. SC160242111,2017 WL 1034409 (Mar. 17, 2017)(sentence final in 1996); Jones v. Jones, No. SC16024607,2017 WL 1034410 (Mar. 17, 2017)(sentence final in 1995); Hartley V. Jones, No. SCl60241359,2017 WL 944232 (Mar. 10, 2017)(sentence final in 1997); Geralds v. Jones, No. SC16024659,2017 WL 944236 (Mar. 10, 20l7)(sentence final in 1996); Lambrix V. State, No. SC160248,SC16- 56, 2017 WL 931105 (Mar. 9, 2017)(sentence final in 1986); Stein V. Jones, No. SC16024621,2017 WL 836806 (Mar. 3, 2017)(sentence final in 1994); Hamilton V. Jones, No. SCl6024984,2017 WL 836807 (Mar. 3, 2017)(sentence final in 1998); Davis V. State, No. SC16024264,2017 WL 656307 (Feb. 17, 2017)(sentence final in 1998); Bogle V. State, 213 So.3d 833 (Fla. 2017)(sentence final in 1995); Wainwright v. State, No. SC150242280, 2017 WL 394509 (Jan. 30, 2017)(sentence final in 1998); Gaskin V. State, No. SC150241884,2017 WL 224772 (Jan. 19, 2017)(sentence final in 1993). 8 PAGE#36 Apprendi. Lukehart v. Jones, SC160241225,2017 WL 1033691, *1 (Mar. 17, 2017); Lukehart v. Florida, 533 U.S. 934 (200l)(Mem.). The Florida Supreme Court's interpretation that the 034Supreme Court distinguished capital cases from its holding in Apprendi to the extent that capital cases permitted. a judge to find specific aggravating factors before imposing a sentence of death,035very clearly indicates that Apprendi does not constitute the turning point for retroactivity. ggay, 210 So.3d at 19, citing Apprendi at 497. The entirety of the 034groundsfor relief035stated in the Motion invite this Court to relitigate gsay, and to an extent, Mosley. While Bowles encourages this Court to depart from gsay in a variety of ways, 034[s]taredecisis is a fundamental principle of Florida law.035State v. Dwyer, 332 So.2d 333, 335 (Fla. 1976). This Court must follow the Florida Supreme 034Court'sclear precedent.035State v. Herring, 76 So.3d 891, 897 (Fla. 2011). Here, Bowles031judgment predated the decision in Bing. Thus, Egret cannot be retroactively applied to Bowles031 case and this Motion must be denied. For successive post024convictionmotions, such as this one filed kmr Bowles, 034[i]fthe Inotion, files, and. records in the case conclusively show that the movant is entitled to no relief, the motion may be denied without an evidentiary hearing.035Fla. R. Crim. P. 3.851(f)(5)(B). Since this claim is meritless on 9 PAGE#37 its face based on the substantial case law against all of Bowles031claims for relief, this Court can summarily deny Bowles031 motion without further proceedings. ANY HURST ERROR IS HARMLESS BEYOND A REASONABLE DOBUT Even. if gggggi were retroactive to Bowles031case, he still would not be entitled to relief. In order to be entitled to relief under gurst, the error must not be harmless beyond a reasonable doubt. §eg }402urst,202 So.3d at 67 (recognizing this error as capable of harmlessness review); }402urst,136 S. Ct. at 624 (remanding to the state to determine whether the error was harmless). 034Wherethe error concerns sentencing, the error is harmless only if there is no reasonable possibility that the error contributed to the sentence.035King v. State, 2ll So.3d 866, 890 (Fla. 2017). In Eing, the Court found harmlessness 034inlight of the unanimous jury recommendation, King's failure to challenge evidence presented in aggravation, as well as the overwhelming and uncontroverted evidence of the four aggravating circumstances and the comparatively weaker n}401tigatingevidence that was challenged by the State.035ld. at 892-93. Like }401ing,034thisis one of the rare cases in which a }401urst error is harmless beyond a reasonable doubt.035Egng, 2ll So.3d at 892. Just as in Eing, the jury unanimously recommended 10 PAGE#38 death. Bowles, 804 So.2d at 1175.2 Though Bowles challenged the heinous, atrocious, or cruel and robbery024pecuniarygain aggravators on appeal, the court found 034competent,substantial evidence in the record035to support the findings. ;g. at 1179- 80. Additionally, like in King, 034theegregious facts of this case...further resolve any doubt that a rational jury would have unanimously found that there were sufficient aggravating circumstances that outweighed the mitigating circumstances." King, 211 So.3d at 891-92. Because of the unanimity030of the jury's recommendation. of death and based on the facts of this case, any error was harmless beyond a reasonable doubt. Thus, this Motion should be denied. CONCLUSION Florida Supreme Court precedent clearly delineates that Hurst retroactively applies only to cases which became final 2 For the thirteen cases in addition to King which hold Hurst to be harmless beyond a reasonable doubt with a unanimous jury recommendation, see Bevel v. State, No. SC14024770,SC140242106,2017 WL 2590702, *6 (Fla. Jun. 15, 2017); Cozzie V. State, No. SC130242393,2017 WL 1954976, *13 (Fla. May 11, 2017); Davis v. State, No. SC150241794,2017 WL 1954979, *10 (Fla. May 11, 2017); Guardado v. Jones, No. SC17024389,2017 WL 1954984, *2 (Fla. May 11, 2017); Morris V. State, No. SC14-1317, 2017 WL 1506853, *10 (Fla. Apr. 27, 2017); Tundidor v. State, No. SC140242276,2017 WL 1506854, *14 (April 27, 2017); Oliver v. State, 214 So.3d 606, 617 (Fla. 2017); Middleton v. State, No. SC120242469,2017 WL 930925, *25 (Fla. Mar. 9, 2017); Truehill V. State, 211 So.3d 930, 936 (Fla. 2017); Hall V. State, 212 So.3d 1001, 1035 (Fla. 2017); Kaczmar V. State, No. SC130242247,2017 WL 410214, *5 (Fla. Jan. 31, 2017); Kniht V. State, No. 8C140241775,8C150241233,2017 WL 411329, *15 (Fla. Jan. 31, 2017); Davis V. State, 207 So.3d 142, 175 (Fla. 2016). 11 PAGE#39 after Ring was decided. Since Bowles031judgment was finalized prior to the decision in Ring, retroactivity does not apply to his case. Even if retroactivity did apply, the error is harmless beyond a reasonable doubt because the jury recommendation was unanimous and the underlying facts of Bowles031 murder, combined with the significant aggravating evidence and minor mitigation, demonstrate that any error did not contribute to the sentence. Therefore, Bowles031successive motion for post- conviction relief must be denied. Respectfully submitted, PAMELA JO BONDI ATTORNEY GENERAL /s/ ;}401bm@W4}401.53wm%w JENNIFER A. DONAHUE ASSISTANT ATTORNEY GENERAL Florida Bar No.: 50639 PL024Ol,The Capitol Tallahassee, FL 32399-1050 [email protected] [email protected] Phone: (850)414-3580 Co024counselfor the Plaintiff 12 PAGE#40 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing State's Answer to Defendant's Successive Rule 3.851 Motion for Post024ConvictionRelief in Light of Hurst v. Florida and Hurst v. State has been furnished via the eportal to Francis Jerome Shea, Esq., [email protected], Attorney for the Defendant; Meredith Charbula, the Office of the State Attorney, sao4024efile[email protected];this 26th day of June, 2017. /s/ g}402%m}401W4}401.d@hm#m6 Co024counselfor the Plaintiff 13 PAGE#41 IN THE CIRCUIT COURT, FOURTH JUDICIAL CIRCUIT, IN AND FOR DUVAL COUNTY, FLORIDA CASE NO.: l6«l994~CF-12188024AXXX024MA DIVISION: CR-A STATE OF FLORIDA v. GARY RAY BOWLES, Defendant. _ / ORDER DENYING DEFENDANT031SSUCCESSIVE 3.851 MOTION FOR POST-CONVICTION RELIEF IN LIGHT OF HURST v. FLORIDA AND HURST v. STATE This cause is before this Court on Defendant031sSuccessive 3.851 Motion for Post024ConvictionRelief in Light of Hurst v. Florida and Hurst V. State (034Motion035),}401ledthrough counsel on June 14, 2017, pursuant to Florida Rule of Criminal Procedure 3.851. On June 26, ' 2017, the State timely filed its Answer to Defendant031sMotion. The facts surrounding the murder of Walter Hinton were rePorted bY the Florida SuPreme _ Court as follows: 034Appellant[Bowles] met Walter Hinton, the victim in this case, at Jacksonville Beach in late October or early November 1994. Appellant agreed to help Hinton move some personal items from Georgia to Hinton031smobile home in Jacksonville. In return, Hinton allowed appellant to live with him at his mobile home. 034OnNovember 22, l.994, police arrested appellant for the murder of Walter Hinton. During subsequent interrogation, appellant gave both oral and written confessions regarding Hinton031smurder. Appellant stated that upon returning home from going with Hinton to take a friend [Richard Smith] to the train station, ,, - '11 Hinton went to sleep and appellant kept drinking. Appellant, Hinton, and the 5% emit friend had drunk beer and smoked marijuana earlier. At some point in the M evening, appellant stated that something inside 030snapped.031He went outside and no A picked up a concrete block, brought it inside the mobile home, and set it on a table. After thinking fora few minutes, appellant picked up the block, went into I-Iinton031s W w room, and dropped the brick on Hinton031shead. The force of the blow caused a facial fracture that extended from Hinton031sright cheek to his jaw. Hinton, now conscious, fell from the bed and appellant began to manually strangle him. Appellant then stuffed toilet paper into Hinton031sthroat and placed a rag into his PAGE # 42 mouth. The medical examiner testified that the cause of death was asphyxia.035 Bowles V. State, 804 So. 2d 1173, ll7402475(Fla. 200l)(quoting Bowles v. State, 716 So. 2d 769, 770 (Fla. 1998)). The procedural history of this causeis stated succinctly in the instant Motion and the State031sAnswer. 2 A rule 3.851 motion must be }401ledwithin one year of the conviction and sentence of death becoming final. Fla. R. Crim. P. 3.851(d)(l). A rule 3.851 motion may be considered beyond the one-year time bar, however, if it alleges that 034thefundamental constitutional right asserted was not established within the [one-year] period provided for in subsection (d)(1) and has been held to I apply retroactively.035Fla. R. Crim. P. 3.851(d)(2)(:B). Defendant031sconviction and sentence of death became final on June 17, 2002, upon denial of his petition for writ of certiorari by the United States Supreme Court. _S__e_e Fla. R. Crim. P. 3.851(d)(l)(B)(stating, for purposes of rule 3.851, 034ajudgment is }401nal. . . on the disposition of the petition for writ of certiorari by the United States Supreme Court, if tiled035);Bowles v. Florida, 536 U.S. 930 (2002)(denying Defendant031spetition for writ of certiorari). Thus, any postconviction claim asserted more than a year after Defendant031sconviction and sentence of death became final must be denied unless the claim falls within the new1y024rec0gnized024retroactive-const.itutional-right exception in subsection (d)(2)(B). Carroll v. State, 114 So. 3d 883, 886 (Fla. 20l3)(;030Rule3.851 requires . . . that motions for postconviction relief must be filed within one year from when the conviction and sentence become }401nalunless the claim is based on . . . a newly recognized fundamental constitutional right that has been held to apply retroactivelyf031). Defendant contends that his death sentence is unconstitutional, and that his sentence of death must be vacated, pursuant to Hurst V. Florida, --- U.S. ---, 136 S.Ct. 616 (2016), which held Florida031scapital sentencing scheme unconstitutional in light of Rin v. Arizona, 536 U.S. 584 (2002), because 034[t]heSixth Amendment requires a jury, not ajudge, to }401ndeach fact necessary to 2 PAGE # 43 impose a sentence of death.035Hurst v. Florida, 136 S.Ct. at 6.19. Defendant also relies on i L (034min035),202 So. ,0313d40, 44 (Fla. 2016) in which, on remand from the United States Supreme Court, the Florida Supreme Court concluded that 034Hurstv. Florida requires that all the critical }401ndingsnecessary before the trial court may consider imposing a sentence of death must be found unanimously by the jury035and that, under the Eighth Amendment, 034thejury031srecommended sentence of death must be unanimous.035The Court further clarified the meaning of m i by proclaiming: 034[I]naddition to unanimously finding the existence of any aggravating factor, the jury must also unanimously find that the aggravating factors are su}401030icientfor 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.035Ii at 54. Defendant alleges he is entitled to retroactive relief under both Hurst v. Florida and }402L_1_r_st. In Asa v. State, 210 So. 3d 1 (Fla. 2016), the Florida Supreme Court addressed whether Hurst v. Florida and _I;I_u_r_. _V_V_i_t_;1 retroactivity framework to conclude that Hurst V. Florida and L-l_u_r§t do not apply retroactively to capital cases that "became }401nalprior to June 24, 2002, the date on which @g was decided. Q The Florida Supreme Court considered whether Hurst v. Florida and ,I_l_._1_1035r_s_tshould apply retroactively to post024@i_gcapital cases in Mosle V. State, 209 So. 3d 1248 (Fla. 2016)? In mg, the Court employed the W}401retroactivity framework as well as the fundamental fairness ' retroactivity analysis set forth in James v. State, 615 So. 2d 688 (Fla. 1993). I_d_. The Court held I that, 034because[the defendant] raised a R_ir1g claim at his first opportunity and was then rejected at every turn . . . fundamental fairness requires the retroactive application of ml-_I_u;g, which defined 030Witt v. State, 387 So. 2d 922 (Fla. 1930). 2 The Defendant031sconviction in Mosley became final afte:i3*_l1i_r1g. %, 209 So. 3d at 1274. V PAGE # 44 the effect of Hurst v. Florida, to [the defendant].0351c_l_._ The Court further found the _Wi_t_t_ framework also supported the retroactive application of Hurst v. Florida and E3; to post-Q cases. See i_d_._ In Gaskin V. State, 218 So. 3d 399 (Fla. 2017), the Florida Supreme Court made clear that the fundamental fairness retroactivity analysis only applies to post-Bing cases. In that case, the defendant had argued, both at trial and on direct appeal, that F1orida031scapital sentencing scheme was facially unconstitutional 034forthe reasons espoused by the United States Supreme Court in I _Ri_n_g and Hurst v. Florida. . . .035LL at 402 (Pariente, J., concurring in part and dissenting in part)(footnote omitted). In spite of the defendant's repeated constitutional assaults on Florida031s capital sentencing scheme based on the reasoning subsequently established in }401ng,the defendant was not entitled to retroactive relief under Hurst V. Florida because the defendant's sentence of death became }401nalpre-Bing. 1<_l_, (citing Asgy). I Taken together, the Aggy/_M_c_>_siey/§as_l_ retroactive application of Hurst V. Florida and to capital cases that became final before R._ir1g I was decided. That bar was was reaffirmed by the Florida Supreme Court as recently as August 10, 2017: 034Wehave consistently applied our decision in Q, denying retroactive application of Hurst v. Florida as interpreted in Hurst v. State to defendants whose death sentences were }401nal when the Supreme Court decided Rin v. Arizona . . . .035Hitchcock v. State, 42 Fla. L. Weekly S753a (Fla. Aug. 10, 2017). Therefore, Defendant031sbelated i claims do not fall within the newly-established-retroactive-constitutional-right exception in subdivision (d)(2)(B) because the right has been held not to apply retroactively to capital cases that became final before R_ing was issued. Accordingly, Defendant is not entitled to relief. Therefore, it is I 4 PAGE # 45 ORDERED that Defendant031sSuccessive 3.851 Motion for Post-Conviction Relief in Light of Hurst V. Florida and Hurst v. State, filed through counsel on June 14, 2017, is hereby DENIED. This is a final Order. The Defendant shall have thirty (30) days from the date that this Order is filed to take an appeal, by }401linga Notice of Appeal with the Clerk of the Court. DONE AND ORDERED in Chambers at Jacksonville, Duval County, Florida, this 4' Z liday of $}401Ig£i ,2017. BRUCE ANDERSON é Circuit Judge Copies to: Francis Jerome Shea, Esq. 644 Cesery Blvd., Suite 250 Jacksonville, FL 32211 lenral @ attorner sheacom Jennifer A. Donahue, Esq. Charmaine Millsaps, Esq. __ Assistant Attorneys General PL-01, The Capitol Tallahassee, FL 32399-1050 ]enn.i'fer.donal1ue @m.f:7l,oridaleval.com charmainemillsas@n1floridale*al.x:on1 cana. @111floridalewa.l.com Meredith Charbula, Esquire Office of the State Attorney Division CR-A sao4duvaZlc'ri minal CrT.17co' .net r_1_1cl1a1'bL1la_@_c;._c)_i._r1<;t 5 PAGE # 46 CERTIFICATE OF SERVICE I do certify that a copy hereof has been furnished to the persons listed above by email this Zq day of /AW031*"03057/ , 2017. I I / 5/ .4_ 1 I , c : t Clerk Case No. 16-1994-CF-12188-AXXX-MA /bw 6 PAGE # 47 Fields, Paula . From: Fields, Paula Sent: Tuesday, August 22, 2017 8:39 AM To: [email protected]; 'jennifer.donahue@myf|orida|egal.com'; charmaine.millsaps@myf|oridalegal.com; 'capapp@myfloridalega|.com'; SAO4Duva|Criminal; Charbula, Meredith; Kornbluth, Sierra Subject: State v. Gary Ray Bowles; Case # 1994024CF-12188 Attachments: O8222017083645.pdf Paula Fields I . Judicial Assistant to the Honorable Bruce R. Anderson, Jr. Felony Division CR-A Duval County Courthouse 501 West Adams Street Jacksonville, FL 32202 Email: fie|dsco030.net Phone: (904) 255-1258 V NOTE: For all calendar reuests lease include oosin counsel without which the reuests will not be rocessed. 1' received aer 3:30m the reuest will be rocessed the ollawin business da. . 030___1_f 030 I in E L E D % AUG 22 2017 ' K)031 030I/l}402 1 PAGE # 48 Doc # 2017218017 , OR BK 18126 Page 2045, Number Pages: 2 , Recorded 09/25/2017 10 :14 AM, Ronnie Fussell CLERK CIRCUIT COURT DUVAL COUNTY RECORDING $0.00 Filing # 61821642 E-Filed 09/21/2017 12:54:04 PM IN THE CIRCUIT TCOUR-T OF THE FOURTH JUDICIAL CIRCUIT IN AND FORDUVAL COUNTY, FLORIDA STATE OF FLORIDA, Plai}401tiff', 'v.- Case No;'1903094-CF02412188-AXXX _ _ Div.: CR-A GARY RAY BOWLES, .Defendant; ._._____j_____:_/ 030N.O.TI.C.EOF;APPEAL ' NOTICE IS GIVEN t11at'Ga1fy. Ray Boviiles, Defendant/Appellant, appeals. t6 the Florida,030Supreme Court; the orde1"o1'.f111s -"Court 'render'éd o}401August; 22, 2017.. The nature oft11e'or'd'er.is a..}401f1alOrder de.r_1yi11g Defendant/Appe1lant1031ssucces__sive_ Rule 3.851 mo_tion fop p4ost'024conv.i'ction're'liefin light; ofvHzl¢r.st.035v.Flo}401a'aand Hurst "v. 030State. Respectfully sub1nitted,. M I 030Francis _hca Fla. Bar NO, 292524. "644-'Cesery B1vd., SL1itc_'25OI -Jacksonvil1e,_ FL 3221 }402 030 Te1e[._jhor_1e:' (904) 399- 1966 1_?ax:V-(904);399'-4866 '1egaI_@att0rneyshe_a.com A_fty;,;for Gary Ray_,Bo_wles 11 ACCEPTED: DUVAL COUNTY, RONNIE FUSSELL, CLERK, 09/25/2017 10: 13: 17 AM PAGE # 49 OR BK 18126 PAGE 2046 CERTIFICATE OFSERVICE I,.Francis Jerome "Shea, herebycertify that.o'n Svepternber-20, 2017', I served this }401lingjbyelectronic, transtnission-via 030the.e'-portal _to_Assistant..Attorn'ey General Jennifer A030.DoI'1'ahue 'at'jennffer.dnnahué@myf1orida1egaLcom and capapp@rny}402orida1egaLcom; and Assistant; State.Attjon1ey Meredith Charbulaiat sao44e}4011e:[email protected]. I031034* 7 .,rancis 030J- e - *- hea, 2 PAGE # 50 Filing # 61821393 E-Filed 09/21/2017 12:49:54 PM IN THE 030CIRCUITCOURTOF THE FOURTH JUDICIAL CIRCUITi IN'_ AND_F_OR DUVAL- COUNTY, FLORIDA STATE OF'FLORID'A, Plaintiff; -v.- Case,N0. 1994024CF-12188 /GARY.R'A030Y.BOWLE"S, Defendant. DIRECTIONS .TO THE CLERK031 ADefenda"nt, througli counsel, directs the Clerk to include all items filed in this Floridha _R_u._1e. of Criminal Procedure 3.851 proceeding as _(lGSC1030lb8dflIl92_1._141(4), FloridaVS'tatutes,- and in Rules 9.'142(a) and 9.-200_(a1)_(_1_:)',_/I+035lorida'Rules of'.Appe1late Proc'ed'ure. 030P/ursu21ritto' Rule0309.200(a)(2), F_lori'cla Rules of 030Ap.pe1lalte_Pr0cedure,~Defen_dant;respec_t_fully _<__ii_rect_s_ the Clerk to "include lln, the record -on appeal in this case all. pleadings; notices_,, notices of "hearing, orders,030original docufnents, exhihbits (whether entered 030into031evidence" or proffered030 024-forpurpose 0_fappeal), 034arid-transcripts"of _pro_ceet_1ir_1gs' from June 145 2017; fthrough. the present; .'034Respectfu'lly-sub I 'jtted_,, O034V_ any 'F_ran_cis Je_ r_n_e Shea ' Fla-..Bar No. 292524. 644 Cesery Blvd., Suite 250 Iaclisonville, FL .3221 1 _ Telephone:_ (904) _39v9'-"1966 Fax: (904) 399-4866 ..1egal@é1ttorneysl1'ea.com .-Atty. for 'Gary031RayBowlesi 1 ACCEPTED: DUVAL COUNTY, RONNIE FUSSELL, CLERK, 09/25/2017 10:10:46 AM PAGE # 51 C-ERTIFICATEV OF SERVICE :1", F1030ancis'Ier0meShea,_11er'eby035'c'ertifythat on Septenibe'1'*.20_,_ 20172 I servedthis; }401lingby électronic'transmission:via. 030thee-portal to._Assistant.030Attorney-Gene_ra1 '.Tennifer A...-Donahue at.-jennifer.dohziliue@my}402§)1*[email protected]; and Assistant State Attorn¢y'.Me_redit11[Charbula at_sao44é}401le-admin'@coj.net._ "Francis 030Jer _ Shea 2 030PAGE # 52 Filing # 61821870 E-Filed 09/21/2017 12:57:45 PM 1 L IN THE" CIRCUIT VCOURTOF .'I'HE'FOUR'I_"H 030JUDICIALCIRCUIT IN AND FORDUVAL COUNTY_;;_FLORIDA. STATE OF FLORIDA, Plaintiff,030 7V. Case N(').'1994aCF-12183 GARY RAY BOWLES, Defendant; _ :______.._*___/ "STATEMENT OF JUDICIAL ACTS _T.O'tBE REVIEWED D_efendant, through030030counsel,}401lesthe following Statement of_Judieizi.1 Acts030to030:be rev1ewe030d:C")'rder030Deny'1r'1'gDef'e}401dant5s'Suecesshive-3030.851 Motion for. Pqst-Conviction Relief030 in 1ight__0fHurst 13. _Flo_rida and.Hu/"st v. State; '}401led.withthe Clerk on.August;-'22, 2017; and all other ru1ings,_ actibns, and-acts_render030e'dadversely to Defendarit. Restfully submittd, : _ :'F1°_aL11cis'Iet "me? hea_ Fla.-_BarNo; 1292524 644 Cesery Blvd., Suite 250 ' J_ac1 11 ACCEPTED: DUVAL COUNTY, RONNIE FUSSELL, CLERK, 09/25/2017 10:15:04 AM PAGE # 53 _ CERTIFICATE OF SERVICE 1, Francis_ Jerome Shea, hereb_y.'c_e1tifytl1at__qn S'epi_;e1nber;2_Q,_- -201.7; I served this .}4011ing,byelectronic transmission030via.,th'ee-portal to Assistant1Att0rney030General Tennifer ' A. Donahue _at'j:ennif_er.donahue@my}402orida1cgal.comand031,capapp@my}402orida1eg;il.com; and Assistant State Attorney l\/Ieredith'Ch030a'rbulaAats'ao4-e}401le'-admin@co_inet. 024 ! Francis Jeromhea 2 PAGE # 54