Florida Court Review

Tracking Florida Cases from the Blogosphere

SCOTUS: Hurst error still harmless when jury unanimous

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The U.S. Supreme Court denied cert in Reynolds v. Florida and companion cases on Tuesday. Justices Breyer, Thomas, and Sotomayor wrote opinions in the case. Justice Sotomayor dissented from the denial of cert, continuing her written critique of the Florida Supreme Court’s harmless error approach. Justice Thomas wrote to “alleviate” some of Justice Breyer’s concerns about the administration of the death penalty in the cases under consideration, writing that, in light of the heinous nature of the crimes, he has “no such worry” about whether the death sentences reflected a “community-based judgment” about “proper retribution.”

But it was a short paragraph in Justice Breyer’s opinion explaining his vote to deny cert that raised our eyebrows, and shed some light on why the Court denied review in the four pre-execution cases since Hurst. We’ll first look at Justice Sotomayor’s dissent.

Justice Sotomayor dissents again

We’ve mentioned Justice Sotomayor’s ongoing correspondence with the Florida Supreme Court regarding that court’s harmless error analysis to Hurst error in light of Caldwell v. Mississippi. In her Tuesday dissent, she indicated that she will continue writing:

I respectfully dissent from the denial of certiorari, and I will continue to note my dissent in future cases raising the Caldwell question.”

Justice Sotomayor’s dissent took on the Florida Supreme Court’s reasoning in Reynolds v. State that Caldwell doesn’t apply to pre-Hurst juries because those juries weren’t misled about their role in sentencing:

But whether or not Caldwell itself makes the petitioners’ sentences unconstitutional, the reasoning in Caldwell surely informs the related question whether a purely advisory jury recommendation is sufficiently reliable for a court to treat it as legally dispositive for purposes of harmless-error review. Caldwell provides strong reasons to doubt that a jury would have reached the same decision had it been instructed that its role was not advisory.”

She concluded that the Florida Supreme Court’s “approach raises substantial Eighth Amendment concerns” and that she “would grant review to decide whether the Florida Supreme Court’s harmless-error approach is valid in light of Caldwell.”

Then she offers a glimpse into what the conference discussion might have been like: “This Court’s refusal to address petitioners’ challenges signals that it is unwilling to decide this issue.”

And that brings us to Justice Breyer’s opinion.

Not the right moment

Justice Breyer mostly agreed with Justice Sotomayor’s Caldwell analysis but didn’t join her vote:

For the reasons set out in Justice Sotomayor’s dissent, I believe the Court should grant certiorari on that question in an appropriate case. That said, I would not grant certiorari on that question here. In many of these cases, the Florida Supreme Court did not fully consider that question, or the defendants may not have properly raised it. That may ultimately impede, or at least complicate, our review.

Reynolds, for instance, waived his right to present mitigation to the sentencing jury–and only 2 of 7 Florida Supreme Court justices joined the court’s opinion in full. Perhaps these were the complications in Reynolds’s case, though Breyer didn’t specifically say so. And while the Florida Supreme Court cites its decision in Reynolds for their rejection of the Caldwell attack on its harmless error approach, something about Reynolds didn’t seem quite right for Breyer’s vote.

Retroactive cutoff at Ring here to stay

But that’s not, in our view, the biggest takeaway from Justice Breyer’s opinion. We now have a clue as to how SCOTUS (or at least Justice Breyer) views the retroactive application of Hurst to sentences final after Ring v. Arizona. And that’s news.

Recall that the Florida Supreme Court has held that Hurst only applies retroactively to sentences that were final after SCOTUS released its opinion in Ring v. Arizona in June 2002. So if a 7-5 jury recommended the death penalty in a sentence that became final in 2001, Hurst will not require a new sentencing hearing, whereas an 11-1 jury recommendation in a sentence finalized in 2006 will get a new sentencing hearing.

This line in the sand struck some (including Justice Pariente, Justice Lewis, and since-retired Justice Perry) as arbitrary and perhaps an easy issue for SCOTUS intervention, especially in death warrant cases on the eve of execution. But then a few death warrant cases challenging the Ring cutoff came and went without comment from any of the justices. Does SCOTUS sanction the retroactive cutoff at Ring?

Justice Breyer indicates the answer might be yes, citing the retroactivity issue as a reason against granting cert in some of the companion cases with Reynolds:

Second, many of these cases raise the question whether the Constitution demands that Hurst be made retroactive to all cases on collateral review, not just to cases involving death sentences that became final after Ring. I believe the retroactivity analysis here is not significantly different from our analysis in Schriro v. Summerlin, 542 U. S. 348 (2004), where we held that Ring does not apply retroactively. Although I dissented in Schriro, I am bound by the majority’s holding in that case. I therefore do not dissent on that ground here.

So because Schriro held that Ring wasn’t retroactive, the Florida Supreme Court’s rule applying Hurst from Ring forward is fine, at least to Justice Breyer. This at least partially explains the denials in Asay, Lambrix, Hannon (though he had a unanimous jury), and Branch‘s death warrant cases. It also might explain the denial of cert in Hitchcock v. Florida. At the very least, it might explain Justice Breyer’s vote in those cases.

Notably, the Florida Supreme Court did not rely upon Schriro in creating the Ring cutoff, mentioning the case in passing in Asay (while opting to follow its Witt and Johnson cases), and not even discussing Schriro in Hitchcock, which is now the main case it uses to reject the challenge to the Hurst retroactivity rule.

Why? In Johnson, the Florida Supreme Court explained that Schriro contains the “narrow” Teague standard, while Witt makes it easier to apply a new criminal procedure rule retroactively. The Florida court held in Johnson that Ring wasn’t retroactive under Witt. If a rule is not retroactive after applying the broader Witt–Johnson standard, it will not be retroactive under Teague–Schriro.

In other words, Justice Breyer–who routinely questions “the constitutionality of the death penalty itself” (and did so again on Tuesday)–indicated that he does not believe Hurst should be applied retroactively in light of the stricter Schriro test, which he believes is settled law. That does not bode well for death row inmates whose sentences were final before Ring v. Arizona.

Cert Watch: Reynolds Week 2

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We’re waiting for the U.S. Supreme Court to either grant or deny cert in Reynolds v. Florida. On Thursday, the Florida Supreme Court again cited Reynolds as the case in which they definitively rejected the Caldwell v. Mississippi challenge to pre-Hurst death sentences.

Recall that Justice Sotomayor has questioned whether Reynolds actually addressed the issue because only two Florida Supreme Court justices fully concurred in the opinion. In Thursday’s opinion in Spencer v. State, five of the seven Florida Supreme Court justices concurred in the opinion.

Last week, SCOTUSblog highlighted Reynolds and six other Florida cases that the Court re-listed after the November 2nd conference. Each case involves the application of Caldwell to pre-Hurst capital sentencing.

Before Hurst, the jury’s role was to advise the judge on whether impose the death penalty. After Hurst, the jury chooses which sentence to impose, not the judge. The Florida Supreme Court now holds that it is harmless beyond a reasonable doubt that the judge imposed a death sentence when the jury’s recommendation was unanimous. But that raises a new question–how reliable is a jury’s unanimous recommendation when they were told they were only giving an advisory opinion–not rendering an actual, final sentence? This is the so-called Caldwell question for SCOTUS’s consideration in these cases.

On Friday, SCOTUS considered Reynolds for a second conference. We’ll see if they grant, deny, or re-list the case for another conference. The Court will release orders on Tuesday.

2018 Election and the Florida Courts

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Perhaps you heard there was an election Tuesday. Florida voters approved each of the appellate judges on the ballot, including Florida Supreme Court Justice Alan Lawson. Voters also approved the amendment raising the mandatory judicial retirement age from 70 to 75.

But the 2018 election’s most consequential impact will be felt at the Florida Supreme Court. And sooner than you may think.

Tomorrow the Florida Supreme Court hears oral argument in League of Women Voters v. Scott. Recall that the court already ruled that the new governor, not Governor Rick Scott, will have the authority to fill the vacancies left by the mandatory retirement of Justices Barbara Pariente, Peggy Quince, and Fred Lewis. The focus tomorrow will be on when the Supreme Court Judicial Nominating Commission can certify its nominations.

With Governor-Elect Ron DeSantis taking office, one might be tempted to believe the issue of whether or not DeSantis fills the three supreme court vacancies with the applicants interviewed by Scott’s JNC is of little moment–perhaps even rendering the case moot. Not so, according to the League‘s Reply Brief submitted today:

While the governor’s office is not changing parties, these issues remain ripe and deserving of sober reflection and considered resolution. The governor-elect is entitled to make these appointments, and to whatever extent his preferences may diverge from Governor Scott, the process must reflect that the Commission is making nominations in its capacity as advisor to him, not Governor Scott.”

As far as we could tell, Governor-Elect DeSantis has not commented on whether he’d prefer the JNC to pause and restart its work when he takes office (which is the League’s position) or whether he would accept the JNC’s recommendations based upon the process Governor Scott began. DeSantis reportedly had general comments about what he is looking for in court appointees, but did not comment on the current applicant list before the JNC or whether he wanted to open the process up to more applicants.

Nevertheless, it doesn’t seem beyond the realm of possibilities that DeSantis and Scott will engage in some sort of collaborative process on the three appointments.

Tomorrow’s argument starts at 9 a.m. You can stream it live at this link.

Cert Watch: Reynolds v. Florida

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We’re watching Reynolds v. Florida at the November 2 SCOTUS conference. Justice Sotomayor wrote about the case in her June dissent from denial of cert in Kaczmar v. Florida—the most recent episode in her yearlong critique of the Florida Supreme Court’s death penalty jurisprudence.

Eighth Amendment challenge in light of Hurst

Michael Gordon Reynolds is on death row for the first-degree murders of Robin and Christina Razor and is serving a life sentence for the second-degree murder of Danny Privett. The jury unanimously recommended his death sentences, which became final back in 2007.

Now Reynolds raises an Eighth Amendment/Caldwell v. Mississippi challenge to Florida’s pre-Hurst v. Florida capital sentencing procedure, arguing that before Hurst, Florida jurors’ sense of responsibility for imposing the death sentence was diminished because they were told they were rendering an advisory verdict to the judge, rather than actually imposing a death sentence.

That, of course, was true before Hurst. So at the time, instructing the jury on their advisory role was not misleading. But after Hurst, it is unconstitutional for a judge to impose the sentence over the jury’s recommendation. The jury’s role is no longer advisory. Reynolds argues that in light of Hurst, his jurors were misled about their role in the sentencing. Their unanimous death penalty “recommendation” transformed into the reason Reynolds is still on death row through the Florida Supreme Court’s practice of finding death sentences “harmless beyond a reasonable doubt” when the jury was unanimous.

There’s more. Reynolds made the strategic decision not to present mitigation evidence to the sentencing jury because he, according to the Florida Supreme Court, “did not think there was any chance of convincing six jurors to vote for life, and did not want to subject his sisters to the stress of testifying before a jury.” Justice Pariente argued in dissent that “Reynolds’ calculation for waiving the right to present evidence of mitigation to the jury would be starkly different in proceedings guided by our post-Hurst capital sentencing statute—requiring only one juror to vote for life,” citing her dissenting opinion in Kaczmar, a case we discussed here.  More on Kaczmar in a minute.

Reynolds presents two Caldwell questions for the Court. The first asks if the FSC’s rejection of his Caldwell claim was error, claiming the “jury was affirmatively misled regarding its role in the sentencing process so as to diminish its sense of responsibility.” The second focuses on the FSC’s per se harmless error approach when reviewing a death sentence with a unanimous jury recommendation. In his case, the jury didn’t hear mitigating evidence before unanimously recommending the death penalty, but the FSC still found his sentence harmless beyond a reasonable doubt.

Supreme pen pals in Washington and Tallahassee

To be sure, the Eighth Amendment issues are interesting. But there’s another reason to watch this case. Justice Sotomayor has engaged the Florida Supreme Court through dissenting opinions from cert denials for the past year, criticizing their approach in both cases under cert consideration and cases not even before SCOTUS. And the Florida Supreme Court has responded in its opinions throughout the year. But not to Justice Sotomayor’s satisfaction.

It’s been a fascinating exchange between Washington and Tallahassee, and Reynolds has already been part of it.

In October 2017, Caldwell challenges gained notoriety when Justice Sotomayor, author of Hurst v. Florida, dissented from the denial of certiorari in Truehill v. Florida and Oliver v. Florida. Justices Ginsburg and Breyer joined her dissenting opinion, with Justice Breyer penning his own note about his Eighth Amendment views. Justice Sotomayor called out the Florida Supreme Court’s failure to address the Caldwell issue in their opinions upholding Truehill’s and Oliver’s death sentences, and wrote that she would have sent the cases back for the FSC to rule on the issue. That was the first volley.

A few weeks later, the Florida Supreme Court mentioned Truehill in passing while it declined to expressly rule on Patrick Hannon’s Caldwell argument before his execution: “although Hannon cites Truehill for the proposition that certain Supreme Court Justices believe that we have not resolved various Eighth Amendment issues, he does not raise an independent Caldwell challenge here.” In other words, that wasn’t the case to rule on the question. SCOTUS denied Hannon’s cert petition without comment from any justice.

In February, Justice Sotomayor opened her dissenting opinion with: “Yet again, the Florida Supreme Court has failed to address an important Eighth Amendment claim raised by capital defendants,” in her dissent from denial in Middleton v. Florida and Tundidor v. Florida. She went on to explain why she would have granted, vacated, and remanded the case to the FSC to address the issue.

Earlier in February, the Florida Supreme Court mentioned in Franklin that they had already rejected “Caldwell-related Hurst claims like Franklin’s pursuant to Davis [v. State],” citing their opinions in Truehill and Oliver. That’s right, the two cases that Justice Sotomayor (a “certain Supreme Court Justice”) called them out for not addressing Caldwell. This didn’t go unnoticed.

On April 2nd, Justice Sotomayor dissented again, called the Truehill line in Franklin “a surprising statement,” and explained in detail how the FSC did not, in fact, address Caldwell at all in Truehill or Oliver. (She could have added, but didn’t, that Davis didn’t mention Caldwell, either.) She signed off with “[t]his Court can and should intervene in the face of this troubling situation.”

Three days later, the Florida Supreme Court decided Reynolds v. State. In Footnote 8, the court indicated it was taking up Justice Sotomayor’s challenge in Truehill: “In light of the dissenting opinions to the denial of certiorari in Truehill v. Florida, however, we now explicitly address what has already been implicitly decided.” The FSC went on to reject Reynolds’s Caldwell challenges to the pre-Hurst sentencing scheme. They did not, however, rely on their position in Franklin that they had already addressed Caldwell in Truehill and Oliver “pursuant to Davis” (Franklin is not mentioned at all in Reynolds).

Justice Sotomayor “wrote back” in June, mentioning Reynolds in her dissent from denial of cert in Kaczmar v. Florida. Noting the FSC’s footnote accepting her challenge, Justice Sotomayor was unimpressed: “The resulting opinion, however, gathered the support only of a plurality, so the issue remains without definitive resolution by the Florida Supreme Court.”

Now Reynolds is at the Supreme Court. It was “rescheduled” twice before Friday’s conference. If granted, it will be the high court’s first grant in a Florida capital sentencing case since Hurst. Will Justice Sotomayor continue her dialogue with the Florida Supreme Court?

Stay tuned.

FSC ends equal treatment of email and snail mail in new rules

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It’s official: email is quicker than standard U.S. Mail, according to the Florida Supreme Court on Thursday. The announcement came in a 6-1 decision over Justice Lewis’s dissent. So beginning January 1, 2019, at 12:02 a.m., Florida litigants will no longer get the 5-day extension for responding to documents served by email.

Court explains that email is “now nearly instantaneous.”

For years, email service was treated the same as regular mail service under Florida Rules of Judicial Administration 2.514 and 2.516. This meant that if you had 20 days to serve a response, you really had 25 if you were served via email. That will change in a couple of months while the champagne fizzes and New Year’s greetings are making their way around the room.

Also notable: the court modified when the service clock begins under Rule 2.514. You do not start counting until the next consecutive day that is not a Saturday, Sunday, or legal holiday. Just like you don’t stop counting until the next day that is not a S/S/LH.

The new rules take effect January 1, 2019, at 12:02 a.m. We wonder if anyone will spread New Year’s cheer by serving a document at 12:01:42 a.m., giving their opponent the benefit of the old rule. Why the court chose 12:02 a.m., and why Justice Lewis dissented, are left to the imagination.

Though rules cases don’t normally read like thrillers, Thursday’s opinions are worth the read for Florida practitioners.

Quo warranto and Frye–Oh My!

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The Florida Supreme Court had a busy week, with opinions on Monday, Wednesday, and Friday. Today, we’ll take a closer look at two cases.

You may now have quo warranto

Before our hibernation, we discussed the challenge to Governor Rick Scott’s authority to appoint three new justices on his way out of office. The court said it was too soon to rule and dismissed the case.

Well, on Monday, they unanimously granted a writ of quo warranto against Governor Scott, ruling that “he exceeded his authority by directing the Supreme Court Judicial Nominating Commission (“the JNC”) to submit its nominations to fill these vacancies by November 10, 2018.” Quo warranto is the fancy Latin term for a constitutional challenge to a state official’s action.

The governor elected in the November general election will have “sole authority to fill the vacancies” when Justices Pariente, Lewis, and Quince retire “at midnight between January 7 and January 8, 2019.” But the court gave us two provisos: (1) “provided the justices do not leave prior to the expiration,” and (2) “provided that the [new] governor takes office immediately upon the beginning of his term.”

We’ll see whether that second proviso becomes a factor. For now, the justices will consider the other issue in the case–“when the JNC can certify its nominations”–at the November 8 oral argument. Stay tuned.

Is it Dau-BAYR or Dau-BERT? Nope, it’s Frye.

As the attention focused on the quo warranto and the two cases concerning constitutional amendments on the upcoming ballot (here and here), the court finally gave us an answer to a bar exam question that has been floating around since 2013: what is the evidentiary standard for expert testimony in Florida?

The Legislature amended the Florida Evidence Code in 2013, adopting the so-called Daubert standard, which is used in federal courts and comes from a SCOTUS case, Daubert v. Merrell Dow Pharmaceuticals, Inc. Before that time, Florida used what is known as the Frye standard, which is named for a D.C. Circuit case in 1923. On Monday, the court answered a question that has been lurking since 2013–does the Legislature actually have the authority to change the standard? Answer: No.

Justice Pariente’s concurring opinion explains the differences and effects of applying one standard over the other. But the case came down to separation of powers.

Under the Florida Constitution’s separation of powers, the Florida Supreme Court generally has the rulemaking authority over court procedures, while the Legislature has the authority to change the substantive law. With 2/3 of each house, the Legislature can overrule a Florida Supreme Court decision. In Marsh v. Valyou, the court had reaffirmed that the Frye standard applies in Florida. The argument was that, if the change was procedural, the Legislature would need 2/3 of House and Senate to adopt Daubert, overruling Marsh. The Legislature did not get 2/3 of the House, while 3/4 of the Senate approved the bill. Nevertheless, many accepted the 2013 amendment as a substantive change to § 90.702, rather than procedural, and proceeded with the Daubert standard without much ado. And since 2013, courts throughout Florida (and bar exam takers) have been using the Daubert standard.

That is, until the court dropped a strong hint in 2017. In February 2017, the court issued a rules opinion declining to adopt the Daubert standard “to the extent that it is procedural,” and left for another day the work of actually striking it down. That day was last Monday.

So we know that the 2013 changes to § 90.702 are unconstitutional. It appears the 2012 version of 90.702 is now the law again. And those taking the Florida Bar Exam have another state distinction to remember.

Moving forward

Thanks for reading as we return to blogging–and tweeting, @fla_ct_rev.

Hibernation Over

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At long last, we’re ending radio silence. Now that nine months of parenting are in the books, the blog’s ready to emerge from the cave.  Thank you for your patience.

 

Concurring opinions challenge precedent at 2DCA and 4DCA

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Wednesday brought opinions in the Second, Third, and Fourth Districts. Judges Lucas and Levine wrote separate opinions that challenge existing precedent.

Thursday gave us opinions from the First DCA, including a dissent from Judge Makar. The Florida Supreme Court also released opinions. No death penalty cases on Thursday, although the court released two death penalty opinions on Friday, denying relief under Hitchcock.

Time to rethink precedent on intent to sell?

In McFarlane v. State, at the Second DCA, Judge Lucas wrote separately to describe how the law on “criminal intent to sell” has “become overly didactic–perhaps to the point that it is becoming unsustainable.” His beef? Case law has evolved to now require that “having a large quantity of drugs, associated paraphernalia, scales, rolls of cash, and so forth” be in evidence as a prerequisite to proving intent to sell.

This, to Judge Lucas, improperly applies the circumstantial evidence rule to one element of  a crime, contrary to the 2016 Florida Supreme Court decision in Knight v. State. (The circumstantial evidence rule: if the evidence of guilt is only circumstantial (i.e, not direct, like a confession, eyewitness account, etc.), then the State’s circumstantial evidence must exclude every reasonable hypothesis of innocence.) In that case, the court clarified that the circumstantial evidence rule applies to the whole crime, “not where any particular element of a crime is demonstrated by circumstantial evidence.”

Judge Lucas traces the origin of the intent-to-sell cases to the application of the circumstantial evidence rule, and argues that it should be rethought in light of Knight: “Since the element in question is one that often turns on circumstantial evidence, it may be time to reconsider our decisions in Phillips, Jackson, and Williams, to the extent that their underpinning is an erroneous element-centric application of the circumstantial evidence rule.” And with a nod to the future: “Hopefully an occasion arises where we can thoughtfully reassess them.”

Statutory interpretation and agency deference–in the same opinion!

At the Fourth DCA, Judge Levine wrote a specially concurring opinion in Whynes v. American Security Insurance Co., joined by Judge Klingensmith, to register his agreement with Justice Lawson’s separate opinion in Schoeff v. R.J. Reynolds, regarding statutory interpretation (“[o]nly after reviewing the text should we look, if needed, to ‘legislative intent.'”), and to take a shot at the appellant’s argument that the court should defer to the Florida Department of Financial Services’ interpretation of the statute at hand.

Judge Levine quotes a law review article by Justice Scalia from 1989, a concurring opinion from Justice Gorsuch when he was on the Tenth Circuit, and Judge Shepherd’s scholarly opinion last year in Pedraza v. Reemployment Assistance Appeals, among other sources.

What’s the issue? The delegation of judicial power to an administrative agency through acquiescence and deference. Many perceive this as a particular problem when the legislative branch grants rule-making  power to the same entity, which is also charged with enforcing and administering the law. The result is an entity with the powers of all three branches of government, and that entity is not directly responsible to the people because the folks writing, enforcing, interpreting, and adjudicating are unelected. Nor are they amenable to the chief executive, in the case of so-called independent agencies. The concern is the de facto rise of a powerful new branch of government that strikes some as inconsistent with a representative democracy and judicial review.

Although it is not new (Justice Jackson called agencies “a veritable fourth branch of government, which has deranged our three-branch legal theories much as the concept of a fourth dimension unsettles our three-dimensional thinking,” saying they are “probably . . . the most significant legal trend of the last century” back in 1952), this has been a trendy topic at the federal level. One of the issues at Justice Gorsuch’s confirmation hearings concerned his views on so-called Chevron deference (i.e., deference to agency interpretation of a statute if the statute is “silent or ambiguous with respect to the specific issue”). And just this week, Justices Thomas and Gorsuch dissented from a denial of certiorari in a case that concerned deference to an agency’s interpretation of its own regulations (also known as Auer or Seminole Rock deference).

Now Judges Levine and Klingensmith join the judicial voices concerned about the separation of powers implications of deferring to an agency’s interpretation of a statute. Since the majority found there was no need to resort to an agency interpretation because the statutory language was clear, the panel did not address the question of deference in any binding way.

Friday’s here

Today we expect opinions from the Second and Fifth DCAs, and will retweet the links @fla_ct_rev.

Note: this post was updated at 12:54pm to reflect the Florida Supreme Court’s out-of-calendar release on Friday.

Unanimous FSC remands for life sentence

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And just like that, the Ides of March came and went before our first March post. Time, especially blog time, is scarce with a newborn’s feeding and sleeping schedule interacting with the morning routine. We hope you understand.

The Ides of March brought opinions from the First DCA and Florida Supreme Court. Wednesday saw a few dissenting opinions from Judge Gross at the Fourth DCA.

Unanimous Florida Supreme Court remands for life sentence

Something you don’t see everyday: the full court voted to vacate the death sentence of Kentrell F. Johnson and remand for an imposition of life without parole. Johnson was a co-defendant of Quentin Truehill, whom we’ve discussed before, and agreed to show investigators where the body of Vincent Binder was located in exchange for the State not pursuing the death penalty. Well, that deal was with one State Attorney’s Office, the Second Circuit in Tallahassee, and not the office that ended up prosecuting him–the Seventh Circuit in St. Johns County. And the trial court found that one State Attorney’s Office couldn’t bind another, even though Johnson led investigators to the body, as agreed.

The Florida Supreme Court reversed using “general contract principles,” finding that none of the agreement’s terms were contingent upon the body being found in one county or another, and that the State was bound by the agreement because Johnson “performed his end of the bargain.”

This is the first post-Hurst case where the full court remanded to impose a life sentence.

Another unanimous Hurst/waiver case

Since Hurst there is one Hurst issue that the Florida Supreme Court has been unanimous on since the beginning: defendants that waived a penalty phase jury are not entitled to new sentencing under Hurst. And yesterday was no exception. The court affirmed Jeffrey Glenn Hutchinson’s death sentences because he waived his right to present evidence to a penalty-phase jury.

This blog has discussed the waiver cases before, and has mused whether pre-Hurst defendants would’ve waived a penalty phase jury had they known that the State needed to convince all 12 jurors to vote for the death penalty, while one vote for a life sentence would’ve been enough to stay off death row.

So far, no justice at the state or U.S. level has dissented in a waiver case.

Dissent in the Districts!

On Wednesday, Judge Gross registered dissent in four cases at the Fourth DCA. Three involved interpretation of the PIP Statute, flow charts and all (here, here, and here), while the other involved a violation of probation and the defendant’s classification as a “danger to the community.”  The defendant’s crime that put him on probation was burglary, but his violation was marijuana-related. At the “danger hearing,” the best the state could come up with to support classification as a danger to the community was (according to Judge Gross’s reading of the record) dishonesty and marijuana use. This didn’t impress Judge Gross:

Under section 948.06(8), a “danger to the community” is not a freewheeling concept unhinged from the statute. Rock and roll music was once considered dangerous to the morals of teenagers, but that type of soft danger is outside the purview of the statute.

Needless to say, Judge Gross would have sent the case back for resentencing.

Tweeting, if not blogging

We’ve been more active on Twitter, and will retweet the links to the Second and Fifth DCA opinion releases. Happy Friday!

SCOTUS hears “that guy’s” First Amendment case today

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Today the U.S. Supreme Court will hear oral argument in Lozman v. City of Riviera Beach. SCOTUSblog has a preview here, and their resource page for the case is here. After SCOTUS granted review, we had a post on the case here.

Fane Lozman was a frequent attendee and thorn in the side of his local government. He even took them all the way to SCOTUS and won in another case.

In this case, Lozman began addressing his city council when the presiding member cut him off after a few seconds, told him he couldn’t speak about the topic (public corruption), then had police escort him out when he refused to change the subject. He was handcuffed and arrested. The State charged him but soon dismissed the charges. Lozman went to federal court with a civil rights complaint against the city. One of his issues was retaliation for exercising First Amendment rights.

Under Eleventh Circuit precedent, if there was probable cause for the arrest, there was no retaliation. But during the 19-day trial, the judge became concerned that the crimes the State actually charged him with were not supported by probable cause. So during trial, while Lozman represented himself, the court allowed the City to peruse the Florida Statutes and come up with another crime that would have been supported by probable cause for the jury instructions (see pages 9-13 of Lozman’s merits brief).

Long story short–they found one, and Lozman lost. Then he lost on appeal because probable cause is an absolute bar to a First Amendment retaliation claim in the Eleventh Circuit. Now he’s at SCOTUS. The issue before the justices is the probable cause rule, but don’t be surprised if some of the justices are concerned about the district court’s picking of a new criminal offense on which to find probable cause after the fact. Will SCOTUS take the probable cause rule head on in this case? We’ll find out together.

Transcript should be up by the end of the day. We’ll tweet the link, @fla_ct_rev.