Perry v. State

• Decision Date: 14 October 2016
• Docket Number: No. SC16–547.,SC16–547.
• Citation: Perry v. State, 210 So. 3d 630 (Fla. 2016)
• Parties: Larry Darnell PERRY, Petitioner, v. STATE of Florida, Respondent.
• Court: Florida Supreme Court

210 So.3d 630

Larry Darnell PERRY, Petitioner,

v.STATE of Florida, Respondent.

No. SC16–547.

Supreme Court of Florida.

Oct. 14, 2016.

J. Edwin Mills and Frank J. Bankowitz, III, Orlando, FL, for Petitioner.

Pamela Jo Bondi, Attorney General, Tallahassee, FL; Carol M. Dittmar, Senior Assistant Attorney General, Tampa, FL; and Vivian Ann Singleton, Assistant Attorney General, Daytona Beach, FL, for Respondent.

Martin J. McClain and Linda McDermott of McClain & McDermott, P.A., Wilton Manors, FL; Todd Gerald Scher of the Law Offices of Todd G. Scher, P.L., Dania Beach, FL; John Paul Abatecola of John Abatecola, P.A., Estero, FL; and Neal Andre Dupree, Capital Collateral Regional Counsel—Southern Region, Suzanne Myers Keffer, Chief Assistant Capital Collateral Regional Counsel—Southern Region, and Michael Chance Meyer, Staff Attorney, Capital Collateral Regional Counsel—Southern Region, Fort Lauderdale, FL, for Amici Curiae Capital Law Offices Specializing in Capital Appeals and Capital Collateral Regional Counsel—Southern Region.

Robert Ralph Berry of Eisenmenger, Berry, Blaue & Peters, P.A., Viera, FL, for Amicus CuriaeWilliam Woodward.

Howard L. Dimmig, II, Public Defender, Robert Arthur Young, General Counsel, Steven L. Bolotin and Peter Mills, Assistant Public Defenders, Tenth Judicial Circuit, Bartow, FL; Sonya Rudenstine, Gainesville, FL; Karen Marcia Gottlieb, Florida International University College of Law's Center for Capital Representation; and Julianne M. Holt, Public Defender, Thirteenth Judicial Circuit, and President of the Florida Public Defender Association, Tampa, FL, for Amici Curiae Tenth Judicial Circuit Public Defender, Florida Association of Criminal Defense Lawyers, Florida Capital Resource Center, Florida International University College of Law's Center for Capital Representation, and Florida Public Defender Association.

Elliot H. Scherker of Greenberg Traurig, P.A., Miami, FL, for Amicus CuriaeThe Constitution Project.

Nancy Gbana Abudu, American Civil Liberties Union Foundation of Florida, Inc., Miami, FL; and Norman Adam Tebrugge, American Civil Liberties Union Foundation of Florida, Inc., Tampa, FL, for Amici Curiae American Civil Liberties Union Foundation, and American Civil Liberties Union of Florida.

PER CURIAM.

The issue before this Court is whether the newly enacted death penalty law, passed after the United States Supreme Court held a portion of Florida's capital sentencing scheme unconstitutional in Hurst v. Florida,–––U.S. ––––, 136 S.Ct. 616, 193 L.Ed.2d 504(2016)("Hurst v. Florida "), may be constitutionally applied to pending prosecutions for capital offenses that occurred prior to the new law's effective date.The Fifth District Court of Appeal concluded in State v. Perry,192 So.3d 70(Fla. 5th DCA2016), that chapter 2016–13, Laws of Florida(2016)("the Act"), could apply to pending prosecutions without constitutional impediment.¹

In its decision, the Fifth District passed on the following questions, which the court certified to be of great public importance:

1) DID HURST V. FLORIDA,––– U.S. ––––, 136 S.Ct. 616, 193 L.Ed.2d 504(2016), DECLARE FLORIDA'S DEATH PENALTY UNCONSTITUTIONAL?

2) IF NOT, DOES CHAPTER 2016–13, LAWS OF FLORIDA, APPLY TO PENDING PROSECUTIONS FOR CAPITAL OFFENSES THAT OCCURRED PRIOR TO ITS EFFECTIVE DATE?

Id. at 76.²Perry filed his Notice to Invoke Discretionary Jurisdiction in this Court based upon the two certified questions.³

We have jurisdiction.Seeart. V, § 3(b)(4), Fla. Const.

We have addressed the first certified question in our opinion on remand in Hurst v. State,202 So.3d 40, (Fla.2016)("Hurst ").Based on that decision, in which we concluded that the death penalty was not declared unconstitutional, we answer the first certified question in the negative.SeeHurst,202 So.3d at 65–66.Further, by its own terms, section 775.082(2), Florida Statutes(2013), is limited to those cases in which the defendant was "previously sentenced to death."Because this case involves a pending prosecution where the death penalty is sought, section 775.082(2) is inapplicable.

In addressing the second certified question of whether the Act may be applied to pending prosecutions, we necessarily review the constitutionality of the Act in light of our opinion in Hurst.In that opinion, we held that as a result of the longstanding adherence to unanimity in criminal jury trials in Florida, the right to a jury trial set forth in article I, section 22 of the Florida Constitution requires that in cases in which the penalty phase jury is not waived, the findings necessary to increase the penalty from a mandatory life sentence to death must be found beyond a reasonable doubt by a unanimous jury.⁴Hurst,202 So.3d at 44–45.Those findings specifically include unanimity as to all aggravating factors to be considered, unanimity that sufficient aggravating factors exist for the imposition of the death penalty, unanimity that the aggravating factors outweigh the mitigating circumstances, and unanimity in the final jury recommendation for death.Id. at 53–54, 59–60.

While most of the provisions of the Act can be construed constitutionally in accordance with Hurst,the Act's requirement that only ten jurors, rather than all twelve, must recommend a death sentence is contrary to our holding in Hurst.Seeid. at 639, at 35("[W]e conclude under the commandments of Hurst v. Florida,[––– U.S. ––––, 136 S.Ct. 616, 193 L.Ed.2d 504(2016) ], Florida's state constitutional right to trial by jury, and our Florida jurisprudence, the penalty phase jury must be unanimous in making the critical findings and recommendation that are necessary before a sentence of death may be considered by the judge or imposed.").⁵Therefore, we answer the second certified question in the negative, holding that the Act cannot be applied constitutionally to pending prosecutions because the Act does not require unanimity in the jury's final recommendation as to whether the defendant should be sentenced to death.

BACKGROUND

In State v. Perry, the Fifth District Court of Appeal addressed two cases involving defendants awaiting trial for charges of first-degree murder, in which the State filed notices of intent to seek the death penalty prior to the United States Supreme Court issuing its decision in Hurst v. Florida on January 12, 2016.Perry,192 So.3d at 73 n. 2.In Hurst v. Florida, the United States Supreme Court held that Florida's capital "sentencing scheme [was] unconstitutional."136 S.Ct. at 619.On March 7, 2016, the Florida Legislature, in response to Hurst v. Florida, amended Florida's capital sentencing scheme ("the Act").Seech.2016–13, Fla. Laws(2016).When the Act went into effect, the State had already filed its petition in the Fifth District.Perry,192 So.3d at 73.

The first case addressed by the Fifth District involves Larry Darnell Perry, who was indicted for first-degree murder and aggravated child abuse for the 2013 death of his son.Id. at 72.After Hurst v. Florida was issued, Perry moved to strike the State's notice of intent to seek the death penalty.Id.The second case concerns William Theodore Woodward, who was charged with two counts of first-degree murder for the 2012 deaths of his two neighbors.Id.After Hurst v. Florida, Woodward moved to prohibit the death qualification of the jury.Id.

The trial courts in both cases granted the defendants' respective motions and, in both cases, the State filed petitions for writs of prohibition in the Fifth District seeking to prohibit the trial courts from striking its notice of intent to seek the death penalty in Perry's case and refusing to death qualify the jury in Woodward's case.Id.The Fifth District consolidated the cases for the purposes of disposition only.Id. at n. 2.

The Fifth District first determined that prohibition is appropriate when a trial court strikes a notice of intent to seek the death penalty or refuses to death qualify a jury in a capital case.Id.Then the Fifth District determined that the United States Supreme Court's decision in Hurst v. Florida did not leave Florida without a death penalty, as contended by Perry and Woodward, but rather "struck [only] the process of imposing a sentence of death."Id. at 73.Thus, the Fifth District rejected Petitioners' arguments that the Act does not apply because section 775.082(2), Florida Statutes(2015), provides for a mandatory, alternative sentence of life imprisonment when the death penalty is stricken.Id.We rejected the same arguments in Hurst, reasoning, first, that section 775.082(2) specifically applied only to "individuals previously sentenced to death, " and, second, as stated above, that Hurst v. Florida did not hold the death penalty unconstitutional.202 So.3d at 59–67.

The Fifth District next turned to the argument that application of the new law to pending cases would constitute an ex post facto violation under the United States and Florida Constitutions.Perry,192 So.3d at 74(citingU.S. Const. art. I, § 10;art. I, § 10, Fla. Const.).The Fifth District concluded that since ex post facto principles generally do not bar the application of procedural changes to pending criminal proceedings, and because it determined that the new law is procedural rather than substantive, there was no ex post facto violation.Id. at 75.The court likened the situation to that in Dobbert v. Florida,432 U.S. 282, 97 S.Ct. 2290, 53 L.Ed.2d 344(1977), in which the United States Supreme Court determined that Florida's newly enacted death sentencing law, passed in response to Furman v. Georgia,408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346(1972), did not constitute an ex post facto violation when it was applied to capital defendants who had not yet been sentenced because it "simply altered the methods employed in determining whether the death penalty was imposed."Perry,192 So.3d at 75(quotingDobbert,432 U.S. at 293–94, 97 S.Ct. 2290 ).The Fifth District also found guidance...