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Florida Supreme Court – Criminal Headnotes-September 14, 2017

DENNIS T. GLOVER V. STATE OF FLORIDA – SUFFICIENCY OF EVIDENCE; INEFFECTIVE ASSISTANCE OF COUNSEL; SPENCER HEARING; REMAND FOR PENALTY PHASE POST-HURST WHERE JURY RECOMMENDATION NOT UNANIMOUS

Direct appeal from conviction for first-degree murder and sentence of death.

The Court found sufficient evidence to support the jury’s determination that the defendant was the perpetrator and that the killing was premeditated. The trial court did not abuse its discretion in excluding evidence of the victim’s drug use, as the defense did not develop any testimony supporting its speculative theory that a drug dealer was the actual killer. Nor did the trial court abuse its discretion in declining to conduct a hearing under Nelson v. State, 274 So. 2d 256 (Fla. 4th DCA 1973), into the effectiveness of defense counsel in pretrial discovery.

The Court declined to take up the question of ineffective assistance itself on direct appeal, as this must be raised in a motion for post-conviction relief.

The Court found no error in the trial court’s determination that the defendant was not intellectually disabled, so as to preclude imposition of the death sentence. The trial court had reopened the Spencer hearing in light of Hall v. Florida, 134 S.Ct. 1986 (2014), which invalidated Florida’s “bright-line” rule precluding defendants with IQs above 70 from establishing intellectual disability as a bar to execution. Some of the defendant’s scores were above that threshold.

The record showed the trial court had considered each of the three prongs of the test set forth at section 921.137(1), Fla. Stat. (2013) — significantly sub-average general intellectual functioning, concurrent deficits in adaptive behavior, and manifestation of the condition before age eighteen — “in tandem,” not treating any one factor as dispositive. Its determination that the defendant was not disabled was supported by competent, substantial evidence.

The Court affirmed the conviction. However, because the penalty phase jury was not unanimous in its recommendation of the death penalty, and did not make specific findings on the weighing of aggravating and mitigating factors, the Court vacated the death sentences and remanded for a new penalty phase, in light of Hurst v. Florida, 136 S.Ct. 616 (2016).

VERNON STEVENS V. STATE OF FLORIDA – FAILURE TO INSTRUCT FOR SECOND-DEGREE ARSON AS PERMISSIVE LESSER INCLUDED OFFENSE; CONFLICT BETWEEN DISTRICT APPEALS COURTS CERTIFIED

Review of decision in Stevens v. State, 195 So. 3d 403 (Fla. 2d DCA 2016), for direct conflict with Moore v. State, 932 So. 2d 524 (Fla. 4th DCA 2006). The 2nd District appeals court had affirmed without discussion the defendant’s convictions for first-degree murder, first-degree arson of a dwelling, and robbery with a deadly weapon, but wrote a brief opinion rejecting the defendant’s argument that the trial court had erred in refusing an instruction for second-degree arson as a lesser included offense.

Noting the conflict with Moore, the appeals court expressed the view that where the evidence establishes that the structure in question was used exclusively as a dwelling, the trial court is not required to give an instruction for second-degree arson.

The Supreme Court agreed, and disapproved Moore. The definition of second-degree arson at section 806.01(2), Fla. Stat. (2013), expressly excludes any circumstance covered by section 806.01(1), defining first-degree arson. While second-degree arson may be a “permissive,” or “category two” lesser-included offense where the elements of first-degree arson are disputed, the Court said, it cannot be a “necessary,” or “category one” lesser-included offense where the elements establishing first-degree arson are not disputed.