State v. Perry

• Decision Date: 16 March 2016
• Docket Number: 5D16–543.,Nos. 5D16–516,s. 5D16–516
• Citation: 192 So.3d 70
• Parties: STATE of Florida, Petitioner, v. Larry Darnell PERRY, Respondent. State of Florida, Petitioner, v. William Theodore Woodward, Respondent.
• Court: Florida District Court of Appeals

192 So.3d 70

STATE of Florida, Petitioner,

v.Larry Darnell PERRY, Respondent.

State of Florida, Petitioner,

v.William Theodore Woodward, Respondent.

Nos. 5D16–516

5D16–543.

District Court of Appeal of Florida, Fifth District.

March 16, 2016.

Rehearing Denied April 20, 2016.

Pamela Jo Bondi, Attorney General, Tallahassee, and Vivian Singleton, Assistant

Attorney General, Daytona Beach, for Petitioner.

Frank J. Bankowitz and J. Edwin Mills, Orlando, for Respondent.

Robert R. Berry and Gregory W. Eisenmenger, of Eisenmenger, Berry, Blaue & Peters, P.A., Viera, for Respondent.

ORFINGER, J.

In Hurst v. Florida, ––– U.S. ––––, ––––, 136 S.Ct. 616, 619, 193 L.Ed.2d 504 (2016), the United States Supreme Court held that Florida's capital “sentencing scheme [is] unconstitutional. The Sixth Amendment requires a jury, not a judge, to find each fact necessary to impose a sentence of death. A jury's mere recommendation is not enough.” The issue we address is the impact of Hurst on pending prosecutions for first-degree murder.¹ In addressing this issue, we must also consider the effect of legislation recently enacted in response to Hurst.

I.

Larry D. Perry was indicted for first-degree murder and aggravated child abuse arising from the death of his son in February 2013. The State filed its notice of intent to seek the death penalty. Shortly after the Supreme Court's Hurst decision, Perry filed a demand for speedy trial and moved to strike the State's notice of intent to seek the death penalty, asserting that “Florida no longer has a death penalty statute.” Following a hearing, the trial court granted Perry's motion to strike, reasoning that, without a procedure in place that complies with Hurst 's mandates, the State could not seek to impose the death penalty.

Similarly, William T. Woodward was indicted for two counts of first-degree murder arising from the deaths of two of his neighbors in September 2012. The State filed its notice of intent to seek the death penalty. Following Hurst, Woodward moved to prohibit the death qualification of the jury, arguing that after Hurst, there is “no constitutionally permitted version of the death penalty” in Florida. The trial court agreed, holding that “there currently exists no statutory authority in Florida under which the State can seek the death penalty....” In response to the trial courts' rulings, the State filed petitions for writs of prohibition, 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 or conduct a penalty phase proceeding in Woodward's case.²

II.

We first consider whether prohibition is available in this matter. The State argues that prohibition is available because it has the exclusive discretion to decide whether to seek the death penalty in a given case and the trial court's order impermissibly invades this discretion. We agree.

Prohibition lies to prevent a court from acting without authority of law or in excess of its jurisdiction. English v. McCrary, 348 So.2d 293, 297 (Fla.1977).

“[A] circuit judge lacks authority to decide pre-trial whether the death penalty will be imposed in a first-degree murder case.” State v. Bloom, 497 So.2d 2, 2 (Fla.1986). Absent certain exceptions inapplicable in this case, the State “has absolute discretion at pre-trial” to determine whether to seek the death penalty in a given case.³ Id. at 3 (discussing State v. Jogan, 388 So.2d 322 (Fla. 3d DCA 1980) ). Thus, we conclude that prohibition is appropriate when the trial court strikes a notice of intent to seek the death penalty or refuses to death qualify a jury in a capital case. See id. (concluding that pretrial death penalty determination by trial judge would unconstitutionally interfere with complete discretionary executive function vested in prosecutor to charge and prosecute cases); see also State v. Donner, 500 So.2d 532, 533 (Fla.1987) (explaining that judiciary cannot interfere with prosecutor's decision to seek death penalty except where impermissible motives may be attributed to prosecution); Cleveland v. State, 417 So.2d 653, 654 (Fla.1982) (holding that statutory scheme for pretrial diversion created alternative to prosecution, which should remain in prosecutor's discretion). Cf. Wade v. State, 41 So.3d 857, 874–76 (Fla.2010) (holding, on defendant's appeal, that trial court did not err in denying motion to strike state's notice of intent to seek death penalty because that decision was in prosecutor's discretion).

III.

Turning to the merits, Perry and Woodward contend that Hurst leaves Florida without a death penalty. The State counters, arguing that Hurst struck down only Florida's procedure for imposing the death penalty, not the death penalty itself. We agree with the State's position.

Hurst determined that Florida's “scheme” to impose the death penalty was unconstitutional, not the penalty itself. The Court recognized that section 775.082(1), Florida Statutes (2010), “does not make a defendant eligible for death until ‘findings by the court that such person shall be punished by death.’ ” 136 S.Ct. at 622 (quoting § 775.082(1), Fla. Stat. (2010) ). In holding Florida's capital sentencing procedure unconstitutional, the Court was particularly concerned that “Florida does not require the jury to make the critical findings necessary to impose the death penalty.” Id. We believe that Hurst 's holding is narrow and based solely on the Court's determination that the “Sixth Amendment requires a jury, not a judge, to find each fact necessary to impose a sentence of death.” Id. at 619. Thus, we have no difficulty in concluding that Hurst struck the process of imposing a sentence of death, not the penalty itself.

IV.

After the State filed its petitions in these cases, the Florida Legislature passed, and the Governor signed into law, new capital sentencing legislation in response to Hurst. See ch. 2016–13, Laws of Fla. We now consider the impact of this new legislation on Perry's and Woodward's pending prosecutions.

We consider two arguments opposing the application of the new legislation to pending cases. The first is that the new legislation does not apply because the Legislature has already provided an alternative sentence if the death penalty was deemed unconstitutional. This argument is based on section 775.082(2), Florida Statutes (2015), which provides, in relevant part:

In the event the death penalty in a capital felony is held to be unconstitutional by the Florida Supreme Court or the United States Supreme Court, the court having jurisdiction over a person previously sentenced to death for a capital felony shall cause such person to be brought before the court, and the court shall sentence such person to life imprisonment as provided in subsection (1).

(Emphasis added). Section 775.082(2) does not address the situation presented here because, by its express terms, the statute applies only to offenders “previously sentenced to death.” More importantly, for the reasons previously explained, the United States Supreme Court in Hurst did not hold that the death penalty was unconstitutional.

The second argument opposing the application of the new legislation to pending cases is that applying the new sentencing law would constitute an ex post facto violation under both United States and Florida Constitutions. Art. I, § 10, cl. 1, U.S. Const.; Art. I, § 10, Fla. Const. The ex post facto doctrine prohibits a state from “retroactively alter [ing] the definition of crimes or increas[ing] the punishment for criminal acts.” Collins v. Youngblood, 497 U.S. 37, 43, 110 S.Ct. 2715, 111 L.Ed.2d 30 (1990). In Dobbert v. Florida, 432 U.S. 282, 292, 97 S.Ct. 2290, 53 L.Ed.2d 344 (1977), the Court held that ex post facto prohibitions reach only those legislative enactments that affect substantive criminal law. The Court summarized the categories of laws constituting substantive changes to criminal law:

[A]ny statute which punishes as a crime an act previously committed, which was innocent when done; which makes more burdensome the punishment for a crime, after its commission, or which deprives one charged with crime of any defense available according to law at the time when the act was committed, is prohibited as ex post facto.

Id. (quoting Beazell v. Ohio, 269 U.S. 167, 169–70, 46 S.Ct. 68, 70 L.Ed. 216 (1925) ). Thus, a legislative act affecting changes in criminal procedure, including procedural changes that disadvantage a defendant, generally does not violate the ex post facto clause. Carmell v. Texas, 529 U.S. 513, 543–44, 120 S.Ct. 1620, 146 L.Ed.2d 577 (2000) (recognizing no one has vested right in mode of procedure); Collins, 497 U.S. at 45, 110 S.Ct. 2715 (“[Procedural] refers to changes in the procedures by which a criminal case is adjudicated, as opposed to changes in the substantive law of crimes.”). The question before us is whether Florida's new capital sentencing statutes made a substantive or procedural change in the law as it existed when Perry's and Woodward's crimes allegedly occurred.

Dobbert is particularly instructive. Dobbert killed his children in 1972. At that time, Florida mandated a death sentence for capital felony convictions, unless the jury, in its discretion, recommended mercy to the judge. Shortly after Dobbert murdered his children, the Supreme Court decided Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), which struck down the Georgia death sentencing statute as unconstitutional. A month later, in Donaldson v. Sack, 265 So.2d 499, 501 (Fla.1972), our supreme court held that the Florida death sentencing statute was also unconstitutional under Furman. Later that year, the Florida Legislature enacted a new capital sentencing procedure to comply with Furman and Donaldson, under which Dobbert was tried, convicted and sentenced to death. Dobbert, 432 U.S. at 284, 287–88, 97 S.Ct. 2290.

In attempting to overturn his death sentence, Dobbert failed to...