State v. Rosario
| Decision Date | 11 September 2020 |
| Docket Number | Case No. 5D19-1592 |
| Parties | STATE of Florida, Appellant, v. Juan ROSARIO, Appellee. |
| Court | Florida District Court of Appeals |
Ashley Moody, Attorney General, Tallahassee, and Christina Z. Pacheco, Assistant Attorney General, Tampa, for Appellant.
Marc J. Burnham, Orlando, for Appellee.
EN BANC
The State of Florida appeals the trial court's order granting Juan Rosario a new penalty phase trial after a jury found him guilty of first-degree murder and arson of an occupied structure, finding that Rosario had received ineffective assistance of counsel. On appeal, the State argues that the trial court erred in granting Rosario's motion without providing it notice or an opportunity to be heard, and in failing to hold an evidentiary hearing to establish factual support for the allegations of ineffective assistance of counsel. The State further argues that the trial court failed to conduct a proper prejudice analysis under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), and that the court erred by considering the motion for new trial prior to sentencing Rosario. We agree and reverse.
A brief factual and procedural history of this case is necessary to properly understand the issues presented in this appeal. On September 8, 2013, Rosario entered the home of eighty-five-year-old Elena Ortega. He severely and brutally beat her with a heavy object and then stole many of her belongings. Later that evening, Rosario returned to Ms. Ortega's house and intentionally set multiple fires. Ms. Ortega, who was likely unconscious but still alive at the time, ultimately died from the blunt-impact injuries to her head
and skull as well as the effects of smoke inhalation. Rosario was subsequently indicted for first-degree murder and arson of an occupied structure, and the State filed its notice of intent to seek the death penalty. In April 2017, Rosario was tried and found guilty on both counts and a penalty phase trial occurred the following month. After hearing all the evidence of aggravation and mitigation, the jury unanimously determined that Rosario should be sentenced to death.
Soon after the jury's recommendation, Rosario's counsel withdrew from representation and a new attorney was appointed. Several months later, Rosario's new counsel filed a motion requesting a new penalty phase trial. In that motion, Rosario attacked, in great detail, the performance of his penalty phase counsel, arguing that it was so deficient as to render the jury's findings unreliable. Prior to any hearing, that motion was withdrawn, only to be replaced a week later by a motion for new trial. The sole basis alleged by Rosario in his motion for new trial was that his trial counsel was not legally qualified to be lead counsel in a death penalty case. See Fla. R. Crim. P. 3.112. There were no allegations of deficient performance.
Without holding a hearing, the trial court entered an order granting in part and denying in part the motion for new trial. The trial court denied the relief requested by Rosario, i.e., a new guilt phase trial, and instead granted him a new penalty phase hearing, basing its ruling on several findings of deficient performance by Rosario's lawyers. The trial court granted Rosario's motion for new penalty phase, even though that motion had been expressly withdrawn, and denied the only motion actually pending—Rosario's motion for new guilt phase trial.
Initially, we do not accept Rosario's argument that the court somehow acted on its own motion. Rosario mentions briefly that under Florida Rule of Criminal Procedure 3.580, a trial court has the authority to grant a new trial on its own initiative, and that by its ruling, that is "essentially" what the court did. However, such an argument is clearly contradicted by the record and by the order itself. In the trial court's order, the judge specifically stated that she was ruling on Rosario's motion for new trial, and even referenced the date on which that motion was filed. The order acknowledged that it was entered without providing an evidentiary hearing to the parties, it referenced the only argument made in the motion, and then impliedly bifurcated the motion for new trial, first denying Rosario's motion for new trial as to the guilt phase and then granting his motion for new trial as to the penalty phase. There simply is no support for Rosario's contention that the trial court was "necessarily" or "essentially" acting on its own motion, or the conclusion in Judge Sasso's dissenting opinion that the order was "errantly couched in terms of granting Rosario's motion." Therefore, whether a trial court has the authority under rule 3.580 to grant a new penalty phase on the court's own motion is simply not an issue presented in this appeal.
Rosario also argues that the trial court could have granted a new penalty phase for any of the reasons included in Florida Rule of Criminal Procedure 3.600(b). This position is untenable as it is neither supported by the record nor by the findings that are required in order to grant a new trial. First, the trial court failed to make any findings that would justify granting a new trial under rule 3.600(b), which provides very specific and limited circumstances under which a new trial can be granted. Arguably, the only applicable circumstance in this case is subsection (8), which provides that "[t]he court shall grant a new trial if substantial rights of the defendant were prejudiced ... [such that] for any other cause not due to the defendant's own fault, the defendant did not receive a fair and impartial trial." Fla. R. Crim. P. 3.600(b)(8). Here, the motion that was granted argued only that Rosario's lead counsel was not qualified to handle death penalty cases and then simply concluded that Rosario did not receive a fair trial as a result. Significantly, the trial court made no finding that Rosario did not receive a fair penalty phase, nor did the court find that Rosario's penalty phase was not impartial. In order to grant a new penalty phase, both findings are required. Additionally, the reason for the new trial must not be due to the defendant's own fault. Again, no such finding was made here.
Because the court granted Rosario's written motion, we next consider whether that motion complied with the applicable rules of criminal procedure. The time and method for filing motions for new trial in capital cases where the death penalty is an issue is set forth in Florida Rule of Criminal Procedure 3.590(b). It its entirety, rule 3.590(b) reads as follows:
(b) Time for Filing in Capital Cases Where the Death Penalty Is an Issue. A motion for new trial or a motion in arrest of judgment, or both, or for a new penalty phase hearing may be made within 10 days after written final judgment of conviction and sentence of life imprisonment or death is filed. The motion may address grounds which arose in the guilt phase and the penalty phase of the trial. Separate motions for the guilt phase and the penalty phase may be filed. The motion or motions may be amended without leave of court prior to the expiration of the 10-day period, and in the discretion of the court, at any other time before the motion is determined.
Prior to its most recent amendment, rule 3.590 provided that a motion for new penalty phase hearing may be made within ten days after the rendition of the verdict, the same time-frame imposed for moving for a new trial in non-capital cases. However, in 2006, the rule was amended in response to a case where a motion for new trial was filed within ten days after the penalty phase but not within ten days following the verdict in the guilt phase. In order to remedy similar situations, the court added a subsection which pertains exclusively to post-trial motions filed in capital cases. In re Amendments to Fla. Rules of Criminal Procedure 3.851 & 3.590, 945 So. 2d 1124, 1125 (Fla. 2006). The amendment provided "time limitations and procedures" for moving for a new penalty phase in capital cases in which the death penalty was an issue. See Fla. R. Crim. P. 3.590 (Comm. Notes, 2006 Amend.). In its current version, rule 3.590(b) requires that any motion for new trial be made "within ten days after final judgment of conviction and sentence of life imprisonment or death is filed." (Emphasis supplied).
Tying the filing of a motion for new trial to the filing date of a conviction and sentence is a requirement that applies only in cases where the death penalty is an issue, and, in our interpretation, rule 3.590(b) necessarily presupposes the imposition of a sentence prior to any decision on whether to grant a motion for new trial (or new penalty phase). Here, Rosario filed, and the court granted, the motion for new trial prior to a final judgment of conviction and sentence being filed. To date, Rosario has not been sentenced in this case. Because Rosario has not yet been sentenced, we agree with the State that it was premature for the court to entertain any motion for a new penalty phase or motion for new trial.
Judge Eisnaugle's dissent ignores the most substantive amendment to rule 3.590, i.e., the added requirement that a judgment of conviction and sentence be filed, and instead focuses on when the motion should be filed.1 By giving no meaning to the newlyadded requirement in capital cases that a sentence first be imposed, the dissent would allow the same result as under the previous version of the rule where capital cases were treated the same as non-capital cases. If that was the intent of the Florida Supreme Court, there would have been no reason to amend rule 3.590 to include a separate and distinct requirement for use in cases where the death penalty is an option. We decline to ignore this requirement.
Judge Eisnaugle notes that the majority opinion fails to address whether there would be any "jurisdictional implications" relative to a prematurely-filed motion for new trial. W...
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