Hurst error in Florida

2019We also explained that the standard to be used in harmless-error analysis is whether there is a “reasonable possibility that the error contributed to the sentence,” and stated that, in the context of Hurst error, the burden is on the State “to prove beyond a reasonable doubt that the jury’s failure to unanimously find all the facts necessary for imposition of the death penalty did not contribute to [the] death sentence.” Id. at 68 .

2018Accordingly, we must determine whether the Hurst error during Smith's penalty phase proceeding was harmless beyond a reasonable doubt. "[I]n the context of a Hurst v. Florida error, the burden is on the State, as the beneficiary of the error, to prove beyond a reasonable doubt that the jury's failure to unanimously find all the facts necessary for imposition of the death penalty did not contribute to [the] death sentence ...." Hurst , 202 So.3d at 68 .

2018Accordingly, we affirm and conclude that "this is one of those rare cases in which the Hurst error was harmless beyond a reasonable doubt." King , 211 So.3d at 890 ; see also Knight , 225 So.3d at 683 ; Davis , 207 So.3d at 175 .

2018Accordingly, we affirm and conclude that "this is one of those rare cases in which the Hurst error was harmless beyond a reasonable doubt." King , 211 So.3d at 890 ; see also Knight , 225 So.3d at 683 ; Davis , 207 So.3d at 175 .

2018Following this Court's orders granting supplemental briefing on the issues presented in the second evidentiary hearing and Hurst v. Florida , --- U.S. ----, 136 S.Ct. 616 , 193 L.Ed.2d 504 (2016), Johnson again argued for the enforcement of his agreement for a life sentence and raised the following new issues: (1) whether trial counsel was ineffective for failure to demand a change of venue; (2) whether Johnson's sentence should be reduced to life pursuant to section 775.082(2), Florida Statutes, in light of Hurst ; and (3) whether the Hurst error in Johnson's case is harmless. 4 Melbourne v.

2018Following this Court's orders granting supplemental briefing on the issues presented in the second evidentiary hearing and Hurst v. Florida , --- U.S. ----, 136 S.Ct. 616 , 193 L.Ed.2d 504 (2016), Johnson again argued for the enforcement of his agreement for a life sentence and raised the following new issues: (1) whether trial counsel was ineffective for failure to demand a change of venue; (2) whether Johnson's sentence should be reduced to life pursuant to section 775.082(2), Florida Statutes, in light of Hurst ; and (3) whether the Hurst error in Johnson's case is harmless. 4 Melbourne v.

2017Because the harmless error review is not a sufficiency of the evidence review nor “a device for the appellate court to substitute itself for the trier-of-fact by simply weighing the evidence,” see DiGuilio, 491 So. 2d at 1138 , I conclude that the Hurst error here was harmful.

2017Because the harmless error review is not a sufficiency of the evidence review nor “a device for the appellate court to substitute itself for the trier-of-fact by simply weighing the evidence,” see DiGuilio, 491 So. 2d at 1138 , I conclude that the Hurst error here was harmful.

2018See Hall II, 212 So. 3d at 1035 - 36 (finding any Hurst error harmless).

2018See Hall II , 212 So.3d at 1035-36 (finding any Hurst error harmless).

2018As I have stated elsewhere, "[b]ecause Hurst requires 'a jury, not a judge, to find each fact necessary to impose a sentence of death,' the error cannot be harmless where such a factual determination was not made." Hall v. State , 212 So.3d 1001 , 1036-37 (Fla. 2017) (Quince, J., concurring in part and dissenting in part) (citation omitted) (quoting Hurst v. Florida , --- U.S. ----, 136 S.Ct. 616 , 619, 193 L.Ed.2d 504 (2016) ); see also Truehill v. State , 211 So.3d 930 , 961 (Fla.) (Quince, J., concurring in part and dissenting in part), cert. denied , --- U.S. ----, 138 S.Ct. 3 , 199 L.Ed.2

2018As I have stated elsewhere, "[b]ecause Hurst requires 'a jury, not a judge, to find each fact necessary to impose a sentence of death,' the error cannot be harmless where such a factual determination was not made." Hall v. State , 212 So.3d 1001 , 1036-37 (Fla. 2017) (Quince, J., concurring in part and dissenting in part) (citation omitted) (quoting Hurst v. Florida , --- U.S. ----, 136 S.Ct. 616 , 619, 193 L.Ed.2d 504 (2016) ); see also Truehill v. State , 211 So.3d 930 , 961 (Fla.) (Quince, J., concurring in part and dissenting in part), cert. denied , --- U.S. ----, 138 S.Ct. 3 , 199 L.Ed.2

2018Therefore, if Hurst applied to Reaves' case, I would conclude that the *65 Hurst error is not harmless beyond a reasonable doubt and grant Reaves a new penalty phase. 1 Hitchcock v. State , 226 So.3d 216 (Fla.), cert. denied , --- U.S. ----, 138 S.Ct. 513 , 199 L.Ed.2d 396 (2017). 2 Hurst v. State ( Hurst ), 202 So.3d 40 (Fla. 2016), cert. denied , --- U.S. ----, 137 S.Ct. 2161 , 198 L.Ed.2d 246 (2017) ; see Hurst v. Florida , --- U.S. ----, 136 S.Ct. 616 , 193 L.Ed.2d 504 (2016).

2018Applying Hurst to Lightbourne's case, in which the jury's vote is unclear, I would grant a new penalty phase because the State cannot prove that the Hurst error is harmless beyond a reasonable doubt. 1 Hurst v. State ( Hurst ), 202 So.3d 40 (Fla. 2016), cert. denied , --- U.S. ----, 137 S.Ct. 2161 , 198 L.Ed.2d 246 (2017) ; see Hurst v. Florida , --- U.S. ----, 136 S.Ct. 616 , 193 L.Ed.2d 504 (2016). 2 Hitchcock v. State , 226 So.3d 216 (Fla.), cert. denied , --- U.S. ----, 138 S.Ct. 513 , 199 L.Ed.2d 396 (2017).

2018By the time the case came back to this Court after a new penalty phase (assuming the jury's recommendation was nonunanimous), Spencer would have likely been entitled to a new penalty phase pursuant to Hurst under Mosley v. State , 209 So.3d 1248 , 1283 (Fla. 2016). 5 *716 Spencer's case involves the quintessential Hurst error-a defendant being sentenced to death without trial by jury, as guaranteed by the United States and Florida Constitutions.

2018By the time the case came back to this Court after a new penalty phase (assuming the jury’s recommendation was nonunanimous), Spencer would have likely been entitled to a new penalty phase pursuant to Hurst under Mosley v. State, 209 So. 3d 1248, 1283 (Fla. 2016).5 Spencer’s case involves the quintessential Hurst error—a defendant being sentenced to death without trial by jury, as guaranteed by the United States and Florida Constitutions.

2018Id. at 9 .

2018Id. at 9 .

2018As I have stated elsewhere, "[b]ecause Hurst requires 'a jury, not a judge, to find each fact necessary to impose a sentence of death,' the error cannot be harmless where such a factual determination was not made." Hall v. State , 212 So.3d 1001 , 1036-37 (Fla. 2017) (Quince, J., concurring in part and dissenting in part) (citation omitted) (quoting Hurst v. Florida , --- U.S. ----, 136 S.Ct. 616 , 619, 193 L.Ed.2d 504 (2016) ); see also Truehill v. State , 211 So.3d 930 , 961 (Fla.) (Quince, J., concurring in part and dissenting in part), cert. denied , --- U.S. ----, 138 S.Ct. 3 , 199 L.Ed.2

2018As I have stated elsewhere, "[b]ecause Hurst requires 'a jury, not a judge, to find each fact necessary to impose a sentence of death,' the error cannot be harmless where such a factual determination was not made." Hall v. State , 212 So.3d 1001 , 1036-37 (Fla. 2017) (Quince, J., concurring in part and dissenting in part) (citation omitted) (quoting Hurst v. Florida , --- U.S. ----, 136 S.Ct. 616 , 619, 193 L.Ed.2d 504 (2016) ); see also Truehill v. State , 211 So.3d 930 , 961 (Fla.) (Quince, J., concurring in part and dissenting in part), cert. denied , --- U.S. ----, 138 S.Ct. 3 , 199 L.Ed.2

2018In Jones , we reasoned that the refusal to present mitigation could not give rise to a subsequent Hurst claim: As previously stated, Jones's waiver of that right was valid, and he "cannot subvert the right to jury factfinding by waiving that right and then suggesting that a subsequent development in the law has fundamentally undermined his sentence." Mullens v. State , 197 So.3d 16 , 40 (Fla. 2016), cert. denied , [--- U.S. ----], 137 S.Ct. 672 [ 196 L.Ed.2d 557 ] (2017).

2018In Jones , we reasoned that the refusal to present mitigation could not give rise to a subsequent Hurst claim: As previously stated, Jones's waiver of that right was valid, and he "cannot subvert the right to jury factfinding by waiving that right and then suggesting that a subsequent development in the law has fundamentally undermined his sentence." Mullens v. State , 197 So.3d 16 , 40 (Fla. 2016), cert. denied , [--- U.S. ----], 137 S.Ct. 672 [ 196 L.Ed.2d 557 ] (2017).

2017See, e.g., Zack v. State, 753 So. 2d 9, 20 (Fla. 2000).

2017See, e.g., Zack v. State, 753 So. 2d 9, 20 (Fla. 2000).

2018See, e.g., Kopsho v. State, 209 So. 3d 568, 570 (Fla. 2017) (holding Hurst error was not harmless after explaining that all that can be determined from the jury’s 10-2 death recommendation is “that the jury did not unanimously recommend a sentence of death”).

2018See, e.g., Kopsho v. State, 209 So.3d 568, 570 (Fla. 2017) (holding Hurst error was not harmless after explaining that all that can be determined from the jury’s 10-2 death recommendation is “that the-jury did not unanimously recommend a sentence of death”).

2018See, e.g., Hojan v. State, 212 So. 3d 982, 1000 (Fla. 2017) (determining that Hurst error was not harmless because the jury did not return a unanimous recommendation for death). -9- Accordingly, we vacate Tisdale’s sentence of death and remand for a new penalty phase pursuant to Hurst. 5 CONCLUSION For the foregoing reasons, we affirm Tisdale’s convictions, affirm the sentences on all lesser charges, vacate the death sentence imposed on the charge of first-degree murder of a law enforcement officer, and remand this case for a new penalty phase pursuant to Hurst.

2018See, e.g. , Hojan v. State , 212 So.3d 982 , 1000 (Fla. 2017) (determining that Hurst error was not harmless because the jury did not return a unanimous recommendation for death).

2018Therefore, if Hurst applied to Reaves' case, I would conclude that the *65 Hurst error is not harmless beyond a reasonable doubt and grant Reaves a new penalty phase. 1 Hitchcock v. State , 226 So.3d 216 (Fla.), cert. denied , --- U.S. ----, 138 S.Ct. 513 , 199 L.Ed.2d 396 (2017). 2 Hurst v. State ( Hurst ), 202 So.3d 40 (Fla. 2016), cert. denied , --- U.S. ----, 137 S.Ct. 2161 , 198 L.Ed.2d 246 (2017) ; see Hurst v. Florida , --- U.S. ----, 136 S.Ct. 616 , 193 L.Ed.2d 504 (2016).

2018Applying Hurst to Lightbourne's case, in which the jury's vote is unclear, I would grant a new penalty phase because the State cannot prove that the Hurst error is harmless beyond a reasonable doubt. 1 Hurst v. State ( Hurst ), 202 So.3d 40 (Fla. 2016), cert. denied , --- U.S. ----, 137 S.Ct. 2161 , 198 L.Ed.2d 246 (2017) ; see Hurst v. Florida , --- U.S. ----, 136 S.Ct. 616 , 193 L.Ed.2d 504 (2016). 2 Hitchcock v. State , 226 So.3d 216 (Fla.), cert. denied , --- U.S. ----, 138 S.Ct. 513 , 199 L.Ed.2d 396 (2017).

2018Therefore, if Hurst applied to Reaves' case, I would conclude that the *65 Hurst error is not harmless beyond a reasonable doubt and grant Reaves a new penalty phase. 1 Hitchcock v. State , 226 So.3d 216 (Fla.), cert. denied , --- U.S. ----, 138 S.Ct. 513 , 199 L.Ed.2d 396 (2017). 2 Hurst v. State ( Hurst ), 202 So.3d 40 (Fla. 2016), cert. denied , --- U.S. ----, 137 S.Ct. 2161 , 198 L.Ed.2d 246 (2017) ; see Hurst v. Florida , --- U.S. ----, 136 S.Ct. 616 , 193 L.Ed.2d 504 (2016).

2018Applying Hurst to Lightbourne's case, in which the jury's vote is unclear, I would grant a new penalty phase because the State cannot prove that the Hurst error is harmless beyond a reasonable doubt. 1 Hurst v. State ( Hurst ), 202 So.3d 40 (Fla. 2016), cert. denied , --- U.S. ----, 137 S.Ct. 2161 , 198 L.Ed.2d 246 (2017) ; see Hurst v. Florida , --- U.S. ----, 136 S.Ct. 616 , 193 L.Ed.2d 504 (2016). 2 Hitchcock v. State , 226 So.3d 216 (Fla.), cert. denied , --- U.S. ----, 138 S.Ct. 513 , 199 L.Ed.2d 396 (2017).

2018Accordingly, we affirm and conclude that "this is one of those rare cases in which the Hurst error was harmless beyond a reasonable doubt." King , 211 So.3d at 890 ; see also Knight , 225 So.3d at 683 ; Davis , 207 So.3d at 175 .

2018Accordingly, we affirm and conclude that "this is one of those rare cases in which the Hurst error was harmless beyond a reasonable doubt." King , 211 So.3d at 890 ; see also Knight , 225 So.3d at 683 ; Davis , 207 So.3d at 175 .

2018See Hitchcock v. State, 226 So. 3d 216, 217 (Fla.), cert. denied, No. 17- -3- 6180, 2017 WL 4355572 , (U.S. Dec. 4, 2017); Asay, 210 So. 3d at 22 ; see also Lambrix v. State, 227 So. 3d 112, 113 (Fla.) (rejecting argument that the Eighth Amendment, equal protection, and due process require that Hurst be applied retroactively to defendant whose sentences were final prior to Ring), cert. denied, 138 S. Ct. 312 (2017).

2017See Lambrix v. State, 42 Fla. L Weekly S833, 2017 WL 4320637, *2-3 (Fla. Sept. 29, 2017) (Pariente, J., dissenting), cert. denied, Nos. 17-6222, 17A375, 2017 WL 4409398 (U.S. Oct. 5, 2017); Asay v. State (Asay VI), 224 So. 3d 695, 703-09 (Fla. 2017) (Pariente, J., dissenting); Hitchcock v. State, 42 Fla. L.

2018Therefore, if Hurst applied to Reaves' case, I would conclude that the *65 Hurst error is not harmless beyond a reasonable doubt and grant Reaves a new penalty phase. 1 Hitchcock v. State , 226 So.3d 216 (Fla.), cert. denied , --- U.S. ----, 138 S.Ct. 513 , 199 L.Ed.2d 396 (2017). 2 Hurst v. State ( Hurst ), 202 So.3d 40 (Fla. 2016), cert. denied , --- U.S. ----, 137 S.Ct. 2161 , 198 L.Ed.2d 246 (2017) ; see Hurst v. Florida , --- U.S. ----, 136 S.Ct. 616 , 193 L.Ed.2d 504 (2016).

2018Hurst v. State (Hurst), 202 So. 3d 40 (Fla. 2016), cert. denied, 137 S. Ct. 2161 (2017); see Hurst v. Florida, 136 S. Ct. 616 (2016). -3- death and the absence of any stricken aggravating factor or other issue that would undermine the reliability of the unanimous recommendation2 that allows this Court to conclude that the Hurst error was harmless beyond a reasonable doubt in Everett’s case.

2017See generally Hurst v. Florida, 136 S. Ct. 616 ; Ring, 536 U.S. 584 . -9- Because I would apply Hurst to Gaskin’s case, I must now determine whether the Hurst error in Gaskin’s penalty phase was harmless beyond a reasonable doubt.

2017See generally Hurst v. Florida, 136 S. Ct. 616 ; Ring, 536 U.S. 584 . -9- Because I would apply Hurst to Gaskin’s case, I must now determine whether the Hurst error in Gaskin’s penalty phase was harmless beyond a reasonable doubt.

2018Therefore, if Hurst applied to Reaves' case, I would conclude that the *65 Hurst error is not harmless beyond a reasonable doubt and grant Reaves a new penalty phase. 1 Hitchcock v. State , 226 So.3d 216 (Fla.), cert. denied , --- U.S. ----, 138 S.Ct. 513 , 199 L.Ed.2d 396 (2017). 2 Hurst v. State ( Hurst ), 202 So.3d 40 (Fla. 2016), cert. denied , --- U.S. ----, 137 S.Ct. 2161 , 198 L.Ed.2d 246 (2017) ; see Hurst v. Florida , --- U.S. ----, 136 S.Ct. 616 , 193 L.Ed.2d 504 (2016).

2018Applying Hurst to Lightbourne's case, in which the jury's vote is unclear, I would grant a new penalty phase because the State cannot prove that the Hurst error is harmless beyond a reasonable doubt. 1 Hurst v. State ( Hurst ), 202 So.3d 40 (Fla. 2016), cert. denied , --- U.S. ----, 137 S.Ct. 2161 , 198 L.Ed.2d 246 (2017) ; see Hurst v. Florida , --- U.S. ----, 136 S.Ct. 616 , 193 L.Ed.2d 504 (2016). 2 Hitchcock v. State , 226 So.3d 216 (Fla.), cert. denied , --- U.S. ----, 138 S.Ct. 513 , 199 L.Ed.2d 396 (2017).

2019We affirm the postconviction court's ruling on this claim because the State proved beyond a reasonable doubt that the Hurst error was harmless and because Allen's Hurst -induced Caldwell v. Mississippi , 472 U.S. 320 , 105 S.Ct. 2633 , 86 L.Ed.2d 231 (1985), claim fails to show that the standard jury instructions violate the Eighth Amendment.

2019We affirm the postconviction court's ruling on this claim because the State proved beyond a reasonable doubt that the Hurst error was harmless and because Allen's Hurst -induced Caldwell v. Mississippi , 472 U.S. 320 , 105 S.Ct. 2633 , 86 L.Ed.2d 231 (1985), claim fails to show that the standard jury instructions violate the Eighth Amendment.

2018As we stated in Davis v. State , 207 So.3d 142 , 175 (Fla. 2016), cert. denied , --- U.S. ----, 137 S.Ct. 2218 , 198 L.Ed.2d 663 (2017) : [T]he jury unanimously found all of the necessary facts for the imposition of death sentences by virtue of its unanimous recommendations. ....

2018As we stated in Davis v. State , 207 So.3d 142 , 175 (Fla. 2016), cert. denied , --- U.S. ----, 137 S.Ct. 2218 , 198 L.Ed.2d 663 (2017) : [T]he jury unanimously found all of the necessary facts for the imposition of death sentences by virtue of its unanimous recommendations. ....

2018In Jones , we reasoned that the refusal to present mitigation could not give rise to a subsequent Hurst claim: As previously stated, Jones's waiver of that right was valid, and he "cannot subvert the right to jury factfinding by waiving that right and then suggesting that a subsequent development in the law has fundamentally undermined his sentence." Mullens v. State , 197 So.3d 16 , 40 (Fla. 2016), cert. denied , [--- U.S. ----], 137 S.Ct. 672 [ 196 L.Ed.2d 557 ] (2017).

2018In Jones , we reasoned that the refusal to present mitigation could not give rise to a subsequent Hurst claim: As previously stated, Jones's waiver of that right was valid, and he "cannot subvert the right to jury factfinding by waiving that right and then suggesting that a subsequent development in the law has fundamentally undermined his sentence." Mullens v. State , 197 So.3d 16 , 40 (Fla. 2016), cert. denied , [--- U.S. ----], 137 S.Ct. 672 [ 196 L.Ed.2d 557 ] (2017).

2026While agreeing that Hurst was applicable, in light of the unanimous jury recommendation as well as the overwhelming and uncontroverted evidence of the four aggravating circumstances and the comparatively weaker mitigating evidence, we concluded that “[i]f any case were to present us with a harmless Hurst error, this is it.” King, 211 So. 3d at 893 . 4.

2018Accordingly, we affirm and conclude that "this is one of those rare cases in which the Hurst error was harmless beyond a reasonable doubt." King , 211 So.3d at 890 ; see also Knight , 225 So.3d at 683 ; Davis , 207 So.3d at 175 .

2025See Zakrzewski IX, 221 So. 3d at 1159 (denying habeas relief and reiterating our holding from Asay, 210 So. 3d 1 , that Hurst v. Florida and Hurst v. State do not apply retroactively to death sentences finalized before Ring); Zakrzewski X, 254 So. 3d at 324 - 12 - (denying Zakrzewski’s fourth successive postconviction motion raising Hurst).

2018See Hitchcock v. State, 226 So. 3d 216, 217 (Fla.), cert. denied, No. 17- -3- 6180, 2017 WL 4355572 , (U.S. Dec. 4, 2017); Asay, 210 So. 3d at 22 ; see also Lambrix v. State, 227 So. 3d 112, 113 (Fla.) (rejecting argument that the Eighth Amendment, equal protection, and due process require that Hurst be applied retroactively to defendant whose sentences were final prior to Ring), cert. denied, 138 S. Ct. 312 (2017).

2018However, errors in the sentencing process have required resentencing on two prior occasions, Merck I, 664 So. 2d at 944 ; Merck v. State (Merck Il), 763 So. 2d 295, 299 (Fla. 2000), and Merck is presently awaiting his third resentencing due to Hurst error in his most recent penalty phase.2 resentencing does not affect our exclusive jurisdiction over this appeal.

2018However, errors in the sentencing process have required resentencing on two prior occasions, Merck I , 664 So.2d at 944 ; Merck v. State ( Merck II ), 763 So.2d 295 , 299 (Fla. 2000), and Merck is presently awaiting his third resentencing due to Hurst error in his most recent penalty phase. 2 The subject of this appeal is Merck's first successive motion for postconviction relief.