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Florida Supreme Court – Criminal Headnotes – May 18, 2017

MATTHEW LEE CAYLOR V. STATE OF FLORIDA – NO INEFFECTIVE ASSISTANCE OF COUNSEL FOR FAILURE TO CHALLENGE JUROR WHERE NO ACTUAL BIAS SHOWN – REMAND FOR PENALTY PHASE POST-HURST WHERE JURY RECOMMENDATION NOT UNANIMOUS – NO AUTOMATIC COMMUTATION TO LIFE WITHOUT PAROLE

Post-conviction motion following exhaustion of direct appeal. Several claims of ineffective assistance of counsel, all but one relating to mitigation issues in penalty phase. Because the court is vacating death sentence post-Hurst, the only claim considered is counsel’s failure to challenge a juror who was equivocal on whether she could be impartial. Affirmed on that issue, as the record refuted any claim an actually biased juror sat on the jury.

Death sentence vacated post-Hurst, because penalty phase jury was not unanimous in recommending death penalty, imposed after 2002 decision in Ring.

CARLOS J. ACEVEDO V. STATE OF FLORIDA – PRIOR CONVICTION UNDER EARLIER STATUTE FOR MOLESTATION OF MINOR SUFFICIENTLY SIMILAR TO OFFENSES ENUMERATED IN DANGEROUS SEXUAL FELONY OFFENDER ACT TO SUPPORT MANDATORY MINIMUM TERM

Certified conflict by 4th District Court of Appeal with Durant v. State, 94 So. 3d 669 (Fla. 5th DCA 2012). Post-conviction motion arguing prior conviction for molestation of minor under 1981 version of section 800.04, Fla. Stat., was not a “similar offense” to those enumerated at section 794.0115(2)(e), Fla. Stat. (2005), because it expressly did not require “intent to commit sexual battery.” 4th District disagreed, saying elements of prior conviction need only be “similar,” not “identical.” 4th District opinion approved, Durant disapproved to extent inconsistent.

KAYLE BARRINGTON BATES V. STATE OF FLORIDA – POSTCONVITION MOTION FOR DNA TESTING OF EVIDENCE – BARRED AS TO ITEMS PREVIOUSLY LITIGATED, DENIED AS TO REMAINING ITEMS, TESTING OF WHICH WOULD NOT TEND TO EXONERATE MOVANT

Post-conviction motion for DNA testing of evidence. Procedurally barred as to seven items previously litigated. Motion denied as to remaining three items, as favorable testing would not tend to exonerate movant where other evidence of guilt is “overwhelming.”

GUERRY WAYNE HERTZ V. JULIE L. JONES – REMAND FOR PENALTY PHASE POST-HURSTWHERE JURY RECOMMENDATION NOT UNANIMOUS

Petition for writ of habeas corpus. Though penalty phase jury found three aggravating factors unanimously, it was unclear whether jury found these factors “sufficient” to justify death penalty. Recommendation itself was not unanimous, and vote on other aggravators not recorded. Death sentence vacated post-Hurst, where sentence became final after 2002 decision in Ring.