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Florida Supreme Court – Criminal Headnotes – August 17, 2017

JAMES ERNEST HITCHCOCK V. STATE OF FLORIDA – NON-UNANIMOUS DEATH PENALTY JURY RECOMMENDATION PRE-RING

Appeal from the summary denial, citing Asay v. Florida, 210 So.3d 1 (Fla. 2016), for post-conviction relief from a death sentence imposed on the non-unanimous recommendation of a penalty phase jury.

Affirmed.

The court declined to apply retroactively the decision of the Supreme Court in Hurst v. Florida, 136 S.Ct. 616 (2016), on remand, Hurst v. State, 202 So.3d 40 (Fla. 2016), cert. den., 137 S.Ct. 2161 (2017), as the sentence here had already become final prior to the decision in Ring v. Arizona, 536 U.S. 584 (2002).

Justice Lewis concurred in the result, but would apply Hurst retroactively to any case in which the defendant preserved a challenge to a lack of penalty phase jury factfinding or a non-unanimous death penalty recommendation prior to Ring, regardless when the sentence itself became final.

Justice Pariente dissented, arguing Hurst should apply retroactively to all death sentences, regardless whether they became final before Ring was decided.

MARK JAMES ASAY V. STATE OF FLORIDA —

Appeal from the denial of a motion for post-conviction relief from a death sentence imposed on the non-unanimous recommendation of a penalty phase jury, and petition for habeas corpus, alleging (a) the lethal injection protocol violates the Eighth Amendment prohibition against cruel and unusual punishment, (b) the manner in which the date of execution was reset violated due process, (c) the defendant was denied access to records that would establish those two arguments, and (d) section 922.06 of the Florida statutes, dealing with the setting of an execution following the lifting of a stay, is unconstitutional.

Affirmed, habeas petition denied.

The denial of the defendant’s request for records was not properly cognizable in a Rule 3.851 proceeding, but the trial court correctly found the requested records would not have demonstrated the defendant was entitled to relief in any event. Expert testimony did not establish the lethal injection protocol placed the defendant at a substantial risk of pain, or that an alternative protocol would entail a significantly less severe risk. Section 922.06 merely prescribes a mechanism for setting an execution and does not implicate any constitutional concerns.

Although the penalty phase jury recommendation was not unanimous, the defendant is not entitled to Hurst relief, as the conviction and sentence were imposed prior to the decision in Ring v. Arizona, 536 U.S. 584 (2002).

Justice Pariente dissented, again arguing Hurst should apply retroactively to all death sentences, regardless whether they became final before Ring was decided. He also noted there was a petition for certiorari pending, against a scheduled execution date of August 24, and the state had delayed the filing of its brief in opposition to that petition. He disagreed with the majority’s assessment that the records the defendant had requested could not help establish his Eighth Amendment or due process claims.