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Florida Supreme Court - Criminal Headnotes - February 1, 2018

STATE OF FLORIDA V. RONNIE J. KNIGHTON – LESSER INCLUDED OFFENSE; PENILE/VAGINAL INTERCOURSE WITH CHILD NOT "UNNATURAL"

Review of Knighton v. State, 193 So. 3d 115 (Fla. 4th DCA 2016), for conflict with Harris v. State, 742 So. 2d 835 (Fla. 2d DCA 1999), on the question whether a defendant charged with "lewd and lascivious" battery under section 800.04(4) of the Florida statutes on an allegation of penile/vaginal intercourse with a child between the ages of twelve and sixteen was entitled to a jury instruction on a lesser charge of committing an "unnatural and lascivious" act under section 800.02.

The state argued there is nothing "unnatural" about penile/vaginal intercourse. The court agreed, noting that to rule otherwise would render the crimes described in the two statutes identical, subsuming the crime of sexual intercourse with a minor, which is a second degree felony, under the crime of unnatural acts, which is a second degree misdemeanor.

The decision of the 4th District appeals court is quashed, and the reasoning of Harris is approved.

DARRYL LEWIS DAVIS V. STATE OF FLORIDA – ROBBERY WITH "FIREARM" OR OTHER DEADLY WEAPON; LESSER INCLUDED OFFENSE

Review of two decision of the 5th District appeals court in Davis v. State, 197 So. 3d 615 (Fla. 5th DCA 2016), and Davis v. State, 197 So. 3d 615, 616 (Fla. 5th DCA 2016) for conflict with Starling v. State, 152 So. 3d 868 (Fla. 1st DCA 2014), and Deleon v. State, 66 So. 3d 391 (Fla. 2d DCA 2011).

At issue was whether the appeals court correctly instructed the trial court to reduce the defendant's convictions from robbery with a deadly weapon under section 812.13(2)(a) of the Florida statutes to robbery with a weapon under section 812.13(2)(b), where the formal charge specified that the weapon was a "firearm," and the evidence was equivocal whether the object the defendant used in committing the robberies was in fact a firearm or merely "a BB gun replica" of a firearm.

The decisions of the appeals court are approved.

STATE OF FLORIDA V. WILLIAM FRANCES SILVA – NON-UNANIMOUS DEATH PENALTY PHASE JURY VERDICT POST-HURST; WAIVER OF POST-CONVICTION PROCEEDINGS

Appeal by the state from a trial court order granting the defendant's post-conviction motion for a new penalty phase after a non-unanimous jury recommendation of death.

Although the sentence here was imposed after the decision in Ring v. Arizona, 536 U.S. 584 (2002), but prior to the decision in Hurst v. Florida, 136 S.Ct. 616 (2016), the court determined that the defendant was not entitled to retroactive relief under Hurst v. State, 202 So. 3d 40 (Fla. 2016), cert. den., 137 S.Ct. 2161 (2017), because he had waived his right to post-conviction proceedings and counsel.

Justice Lewis, in a lengthy dissent, argued that this was a departure from the line the court has consistently taken in other, similar cases, granting relief where a death sentence was imposed post-Ring but pre-Hurst on a non-unanimous penalty jury verdict.

While the court has treated the waiver of post-conviction proceedings as a final determination in some other cases, he said, those decisions were predicated on findings that the defendant had simply changed his mind. In the present case, at the time the defendant waived post-conviction proceedings, his challenge to a non-unanimous penalty phase verdict would have been treated as "frivolous" by the court.

ALEX PAGAN V. STATE OF FLORIDA – NON-UNANIMOUS DEATH PENALTY VERDICT POST-HURST

Appeal from the denial of a post-conviction motion to vacate a death sentence imposed on non-unanimous penalty phase jury verdict rendered after Ring v. Arizona, 536 U.S. 584 (2002), but prior to the decision of the Supreme Court in Hurst v. Florida, 136 S.Ct. 616 (2016).

Finding the non-unanimous verdict to constitute reversible error per se under Hurst, the supreme court reversed and remanded with instructions to conduct a new penalty phase. The court expressly rejected the state's argument that it should affirm the denial of the motion to vacate unless the defendant had shown by clear and convincing evidence that no reasonable juror could have found that the aggravating circumstances outweighed the mitigating circumstances, citing by analogy the recent Supreme Court decision in Jenkins v. Hutton, 137 S.Ct. 1769 (2017).

Justices Polston and Lawson each dissented, in separate opinions. Both argued that the majority opinion had substituted a per se rule for the harmless error analysis required by Hurst, vacating a death sentence on the ground that the penalty phase verdict was not unanimous, rather than on the ground that a rational jury could not have recommended the sentence.

Justice Polston also argued that Hurst should not apply retroactively absent an affirmative showing of other than harmless error, citing Justice Canady's partial dissent in Mosley v. State, 209 So. 3d 1248 (Fla. 2016), and further, that because the aggravating factors here were supported by the jury's verdict in the guilt phase, there would be no Hurst error here even if it were applied retroactively.