We’ve discussed the importance of scientific study and analysis of brain disorders and brain damage in death penalty defense many times before. 

In fact, you may know Terence Lenamon as one of the pioneers in using QEEG as part of a death penalty defense.  For more on Terry’s experience with QEEG in the courtroom, check out:

Recommended Read:  The Brain Defense by Kevin Davis

Hopefully, the national spotlight on this vital issue will grow with the publication of a new book by journalist Kevin Davis, entitled The Brain Defense: Murder in Manhattan and the Dawn of Neuroscience in America’s Courtrooms.

Of particular note is an entire chapter of the book dedicated to neuroscience and capital punishment in America today.  Davis interviewed Terence Lenamon for the book and its chapter on brain science in death penalty cases.

Lenamon Discusses QEEG and Grady Nelson Case in The Brain Defense

Of particular note to readers is Terry Lenamon’s in-depth discussion of his defense of Grady Nelson and his defense reasoning and strategy in both the guilt and sentencing phases of that trial. 

QEEG was an important factor in the Florida death penalty trial of Grady Nelson.  Terry discusses how it impacted that result (death was denied) as well as how vital QEEG is to the future of death penalty defense. 

You can get the book on Amazon as well as read an excerpt from the book and its growing number of positive reviews there:

 

 

Jeffrey Deskovic has a unique story, and with it comes a perspective that can help us all understand the American criminal justice system a bit better than before. You see, Mr. Deskovic spent 16 years in prison for a murder and rape for which he was innocent.

Arrested when he was only 16 years old, the police coerced a false confession from the teenager after 7.5 hours of interrogation. Using that conviction, Deskovic was convicted and sentenced to 15 years to life, even though: (1) DNA evidence showed that semen inside of the victim; and (2) hair found on the victim were not a match for Deskovic, supporting his claims of innocence.

It was only through the efforts of the Innocence Project that Jeff Deskovic was freed – and this was not due to the courts reversing his case on appeal. No.

The only way that Mr. Deskovic was freed was because the Innocence Project collected the DNA evidence, compared the DNA to the state database, and discovered the real evildoer. Once again, thank God for the Innocence Project.

Now that he’s fully exonerated, Jeffrey Deskovic devotes his time to fighting against wrongful convictions in this country. One of the ways that he does this is via the internet, and at his website, you can read about:

1. Mr. Deskovic’s speechmaking around the country, including his national fight against the death penalty (he points out that if he had been 18 and not 16 when was convicted, he may well have been executed before he could have been exonerated under the current death row timelines);

2. Mr. Deskovic’s articles that published in various media across the country, urging the repeal of the death penalty in various states as well as on the federal level;

3. Forum discussions where site members (membership is free) discuss topics of interest, such as the position of Judge Sotomayor on the death penalty (FYI, Jeff Deskovic is against Sotomayor being appointed to the U.S. Supreme Court).

VISIT Recommended Website: Jeffrey Deskovic Speaks.

The Death Penalty Information Center has released the annual year-end report: it’s a recommended read.

In the 2020 Year End Report from the Death Penalty Information Center, perhaps the most shocking revelation is its tally of ten (10) executions within a five (5) month time period by the federal government. These are civilian executions, not involving the military.  For more on that distinction read our earlier post, 10 Things to Know About U.S. Death Penalty in First Half 2020.
The Report points out that in 2020, for the first time in our nation’s history, the federal government executed more people than all the states — combined.
  • Every prisoner executed this year was age 21 or younger at the offense or had at least one of the following impairments: significant evidence of mental illness (8); evidence of brain injury, developmental brain damage, or an IQ in the intellectually disabled range (6); chronic serious childhood trauma, neglect, and/or abuse (14).
  • Five people were exonerated from death row in 2020, bringing the number of people exonerated from death row to 172 since 1973. In each of the five cases, prosecutorial misconduct contributed to the wrongful conviction.
  • With Colorado abolishing capital punishment this year, more than two-thirds of states (34) have either repealed the death penalty or not carried out an execution in 10 years. According to Gallup, the 43 percent of people who opposed the death penalty in 2020 is the highest level of opposition since 1966.
  • Candidates pledging systemic reforms, including reduced use or abandonment of the death penalty, won prosecutor races in several jurisdictions that have historically produced a large number of death sentences: Los Angeles County (CA), Travis County (Austin, TX), Orange-Osceola counties (Orlando, FL), and Franklin County (Columbus, OH). Across the county, reform prosecutors took the helm in counties comprising more than 12 percent of the nation’s death-row population.

For previous recommended reads, go here.

We’ve recommended John Grisham’s work before, as a whole, in no small part due to his focus upon aspects of criminal defense in death penalty matters. See, “Book Recommendation: John Grisham’s Novels on Death Row and Capital Punishment.”

book cover of A Time for Mercy linked to AmazonThis fall, Mr. Grisham has released another novel, the third in his Jake Brigance series (as played by Matthew McConaughey in the movie version of Grisham’s first book, A Time to Kill).

It’s entitled A Time for Mercy, and it’s a recommended read.

The story deals with death penalty defense – and spans a time frame from the initial killing through arrest and trial to jury verdict.

A theme running through the book is something dovetailing one of Terry’s passions:  spotlighting the realities of financial support in indigent capital case defense.  In A Time for Mercy, the defense lawyer is not only facing of criticism  and ridicule because of the case, but he’s got financial woes as an added burden while he has the fiscall responsibilities of defending a death penalty case where the client is indigent.

It’s another good read from John Grisham, and a welcomed respite in these turbulent times.

Click on the image to visit Amazon.com and read more details on the book and its 12,688 ratings (4.8 stars).

How the race of the accused impacts not only the likelihood of his or her arrest, but the chance of conviction and the severity of punishment is a critical and vital component to any defense of a death penalty case, as exemplified in the current pre-trial motions being filed in the Markeith Loyd matter by Terence Lenamon we have shared in previous posts.

New DPIC Report on Racial Discrimination in Death Penalty Cases

This month, the Death Penalty Information Center (DPIC) published a new report entitled, “Enduring Injustice: the Persistence of Racial Discrimination in the U.S. Death Penalty.”  (Click on the image of its cover to read the report online in its entirety.)

It’s a recommended read.

From the DPIC press release the author of the new report, DPIC’s Senior Director of Research and Special Projects Ngozi Ndulue, explains:

“We have seen more explicit reference to the continued racial discrimination in the death penalty in the last few months.  This is a moment that advocates are really looking for concrete changes and what we’re trying to do with this report — the bulk of it was written before the deaths of Ahmaud Arbery, Breonna Taylor, George Floyd — ties really into the moment of reckoning of racial justice the country is having right now.”

Also note the following data from the new DPIC publication (emphasis added):

  • A 2015 meta-analysis of 30 studies showing that the killers of white people were more likely than the killers of Black people to face a capital prosecution.
  • A study in North Carolina showing that qualified Black jurors were struck from juries at more than twice the rate of qualified white jurors. As of 2010, 20 percent of those on the state’s death row were sentenced to death by all-white juries.
  • Data showing that since executions resumed in 1977, 295 African-American defendants have been executed for interracial murders of white victims, while only 21 white defendants have been executed for interracial murders of African Americans.
  • A 2014 mock jury study of more than 500 Californians that found white jurors were more likely to sentence poor Latinx defendants to death than poor white defendants.
  • Data showing that exonerations of African Americans for murder convictions are 22 percent more likely to be linked to police misconduct.

The Death Penalty Information Center has released its annual Year End analysis of the state of capital punishment in this country.  Go here to read the entire report, “The Death Penalty in 2018: Year End Report.”

 

Jurisdictions that imposed the death penalty during the year 2018. Graphic: DPIC

 

2018: Death Penalty in Florida

Of course, the State of Florida is included in this yearly recap on both death sentences and executions, as well as exonerations for those living on Florida’s Death Row.  What were the major events insofar as capital punishment in Florida during the past twelve months?

  1.  Seven Death Sentences

Last year, Florida tied with Texas as having the most death sentences imposed during 2018.  Both states saw seven (7) individuals sentenced to death.  Together with California and Ohio, these four states were responsible for over half of all death sentences last year (57%).

From the DPIC 2018 Report, page 4:

Fourteen states and the federal government imposed death sentences in 2018, but 57% of those sentences came from just four states: Texas and Florida (both with seven) and California and Ohio (both with five). Even as the backlog of cases from two years of uncertainty about the constitutionality of Florida’s sentencing procedures increased the number of capital trials in the state, the new law barring judges from imposing the death penalty without a unanimous jury recommendation for death resulted in at least four life sentences that might previously have produced death verdicts.

2.  One Exoneration: Clemente Javier Aguirre

Florida saw one Florida Death Row Inmate freed during the year 2018.  Mr. Clemente Javier Aguire left prison in November, after being sentenced to death 12 years earlier.  Key appellate arguments  here included challenges to DNA evidence as well as credibility of one of the state’s key witness.

From the DPIC 2018 Report, page 7:

Clemente Javier Aguirre was exonerated from Florida’s death row on November 5, after jury selection for his retrial had already begun. He was the 28th death-row prisoner exonerated in Florida. Aguirre was convicted and sentenced to death in 2006 of the murder of two neighbors–an elderly woman and her adult daughter–in 2004. He steadfastly maintained his innocence, saying he had discovered the women after they had been killed. He did not report the murders to authorities, he said, because he was an undocumented immigrant and feared deportation. The prosecution’s chief witness against Aguirre was Samantha Williams, the mentally ill daughter and granddaughter of the victims. During the post-conviction process, Aguirre’s lawyers discovered that Williams had confessed to at least five different people that she had killed her relatives. None of the DNA found on the 84 items from the crime scene that were tested matched Aguirre. Most blood samples matched the two victims, and Samantha Williams’s DNA was found on eight bloodstains collected from four different rooms. As with more than 90% of Florida’s death-row exonerees, Aguirre had been sentenced to death by non-unanimous jury recommendations under Florida’s unconstitutional capital sentencing scheme.

3.  Execution of Eric Branch Despite Non-Unanimous Jury and SCOTUS Ruling in Hurst

The Supreme Court of the United States found the Florida statute that allowed for non-unanimous juries to impose death sentences was unconstitutional.  SCOTUS held that every single jury member must agree upon capital punishment before death is imposed.  However, the Florida Supreme Court later ruled that it would draw a line on the calendar insofar as when Hurst would apply to Florida’s Death Row inmates:  if the case was final before June 2002, when the SCOTUS decision in Ring v. Arizona came down, then Hurst would not be applied and the non-unanimous jury death sentence would stand.

The result?  Eric Branch was executed by the State of Florida in 2018, despite his jury voting 10-2 for the death penalty.

From the DPIC Report, page 12:

Two men, Eric Branch in Florida and Walter Moody in Alabama, were executed after non-unanimous juries recommended death sentences. Branch, who was only 21 at the time of his crime, received a 10-2 jury recommendation for death, an outcome that could not produce a death sentence today. In 2016, in Hurst v. Florida, the U.S. Supreme Court struck down the Florida sentencing scheme under which Branch was tried and condemned. Branch was one of 200 prisoners sentenced under Florida’s unconstitutional statute who still face execution as a result of a Florida Supreme Court ruling that it will enforce Hurst only in cases finalized after June 2002, when the U.S. Supreme Court decided a related case, Ring v. Arizona. In 2018, the U.S. Supreme Court declined to review 84 Florida cases in which defendants had been sentenced to death under the unconstitutional statute. Alabama law still allows non-unanimous jury recommendations for death, as long as at least 10 jurors agree, but Moody’s 11-1 jury recommendation would result in a life sentence in nearly every other death-penalty state.

For more on Hurst, see:

This week, seven Florida capital cases were decided by the United States Supreme Court (SCOTUS) as the High Court issued its orders denying future consideration of requests made by Florida Death Row inmates.

All of these cases ask SCOTUS to review decisions made by the Florida Supreme Court as it applies the SCOTUS decision in Hurst v. Florida.

We’ve discussed Hurst before; in sum, SCOTUS found the Florida death penalty statute was unconstitutional because juries did not decide whether or not there were sufficient aggravating factors to impose death (under the law, the judge decided on capital punishment).  When Hurst came down, it meant that Florida Death Row inmates who were sentenced to death under an unconstitutional process were due new sentencing trials.  They began filing appeals, among them these seven whose writs were denied this Tuesday.

See:

Seven Florida Petitions Based Upon Hurst Denied by SCOTUS This Week

Specifically, the seven Florida capital cases are as follows (linked to their respective SCOTUS Docket pages):

Franklin v. Florida, 18-5228

11-13-18 Order:  Petition DENIED. Justice Thomas, concurring in the denial of certiorari: I concur for the reasons set out in Reynolds v. Florida, 586 U. S. ___ (2018) (Thomas, J., concurring). Justice Sotomayor, dissenting from the denial of certiorari: I dissent for the reasons set out in Reynolds v. Florida, 586 U. S. ___ (2018) (Sotomayor, J., dissenting).

Grim v. Florida, 18-5518

11-13-18 Order:  Petition DENIED. Justice Thomas, concurring in the denial of certiorari: I concur for the reasons set out in Reynolds v. Florida, 586 U. S. ___ (2018) (Thomas, J., concurring). Justice Sotomayor, dissenting from the denial of certiorari: I dissent for the reasons set out in Reynolds v. Florida, 586 U. S. ___ (2018) (Sotomayor, J., dissenting).

Guardado v. Florida, 17-9284

11-13-18 Order:  Petition DENIED. Justice Thomas, concurring in the denial of certiorari: I concur for the reasons set out in Reynolds v. Florida, 586 U. S. ___ (2018) (Thomas, J., concurring). Justice Sotomayor, dissenting from the denial of certiorari: I dissent for the reasons set out in Reynolds v. Florida, 586 U. S. ___ (2018) (Sotomayor, J., dissenting).

Johnston v. Florida, 18-5793

11-13-18 Order:  Petition DENIED. Justice Thomas, concurring in the denial of certiorari: I concur for the reasons set out in Reynolds v. Florida, 586 U. S. ___ (2018) (Thomas, J., concurring). Justice Sotomayor, dissenting from the denial of certiorari: I dissent for the reasons set out in Reynolds v. Florida, 586 U. S. ___ (2018) (Sotomayor, J., dissenting).

Philmore v. Florida, 17-9556

11-13-18 Order:  Petition DENIED. Justice Thomas, concurring in the denial of certiorari: I concur for the reasons set out in Reynolds v. Florida, 586 U. S. ___ (2018) (Thomas, J., concurring). Justice Sotomayor, dissenting from the denial of certiorari: I dissent for the reasons set out in Reynolds v. Florida, 586 U. S. ___ (2018) (Sotomayor, J., dissenting).

Reynolds v. Florida, 18-5181

11-13-18 Order:  Petition DENIED. Statement of Justice Breyer respecting the denial of certiorari. (Detached). Justice Thomas, concurring in the denial of certiorari. (Detached Opinion). Justice Sotomayor, dissenting from denial of certiorari. (Detached Opinion).

Tanzi v. Florida, 18-5160

11-13-18 Order:  Petition DENIED. Justice Thomas, concurring in the denial of certiorari: I concur for the reasons set out in Reynolds v. Florida, 586 U. S. ___ (2018) (Thomas, J., concurring). Justice Sotomayor, dissenting from the denial of certiorari: I dissent for the reasons set out in Reynolds v. Florida, 586 U. S. ___ (2018) (Sotomayor, J., dissenting).

Revelation of Three Justices’ Viewpoints on Death Penalty

Most of the Justices simply agreed with the order denying writ; however, three felt passionately enough about the issue to write on the subject.  Sotomayor dissented; both Thomas and Breyer concurred.

1.  Sotomayor Dissent

Once again, Justice Sotomayor dissented in these death penalty cases arguing that the petitions for writ of certiorari should have been granted.  She writes that while each of the seven petitions deal with “gruesome crimes” there should be consideration of the constitutional issues raised by the Death Row Inmates.

From  Justice Sotomayor’s Dissent in Reynolds:

“Today, this Court denies the petitions of seven capital defendants, each of whom was sentenced to death under a capital sentencing scheme that this Court has since declared unconstitutional.  The Florida Supreme Court has left the petitioners’ death sentences undisturbed, reasoning that any sentencing error in their cases was harmless. Petitioners challenge the Florida Supreme Court’s analysis because it treats the fact of unanimous jury recommendations in their cases as highly significant, or legally dispositive, even though those juries were told repeatedly that their verdicts were merely advisory. I have dissented before from this Court’s failure to intervene on this issue. Petitioners’ constitutional claim is substantial and affects numerous capital defendants. The consequence of error in these cases is too severe to leave petitioners’ challenges unanswered, and I therefore would grant the petitions.

“[T]his Court’s Eighth Amendment jurisprudence has taken as a given that capital sentencers would view their task as the serious one of determining whether a specific human being should die at the hands of the State.” Caldwell, 472 U. S., at 329. The jurors in petitioners’ cases were repeatedly instructed that their role was merely advisory, yet the Florida Supreme Court has treated their recommendations as legally binding by way of its harmlesserror analysis. This approach raises substantial Eighth Amendment concerns. As I continue to believe that “the stakes in capital cases are too high to ignore such constitutional challenges,” Truehill v. Florida, 583 U. S. ___, ___ (2017) (slip op., at 2), I would grant review to decide whether the Florida Supreme Court’s harmless-error approach is valid in light of Caldwell. This Court’s refusal to address petitioners’ challenges signals that it is unwilling to decide this issue. I respectfully dissent from the denial of certiorari, and I will continue to note my dissent in future cases raising the Caldwell question.”

2.  Thomas Concurrence

Justice Thomas concurred with the decision to deny these petitions; he is clear it has already been decided the Eighth Amendment (against cruel and unusual punishment) is not violated by the death penalty.

From the Reynolds concurrence by Justice Thomas:

“JUSTICE BREYER’s final (and actual) concern is with the “‘death penalty itself.’” Ante, at 4. As I have elsewhere explained, “it is clear that the Eighth Amendment does not prohibit the death penalty.” Baze v. Rees, 553 U. S 35, 94 (2008) (opinion concurring in judgment); see Glossip, supra, at ___–___, and n. 1 (THOMAS, J., concurring) (slip op., at 1–2, and n. 1). The only thing “cruel and unusual” in this case was petitioner’s brutal murder of three innocent victims.”

3. Breyer Concurrence

There is also a concurrence from Justice Breyer, where he explains his position on these denials. He does express concerns about capital punishment in this country – not on the act itself, but in how long it is taking to execute those sentenced to death.  He calls the delays “unconscionable.”  He also has concerns about the retroactive application of Hurst and how judges and juries make the decision to sentence the accused to death (in Florida and elsewhere).

From  Justice Breyer’s concurrence:

“It seems to me that the jurors in at least some of these cases might not have made a “community-based judgment” that a death sentence was “proper retribution” had they known at the time of sentencing (1) that the death penalty might not be administered for another 40 years or more; (2) that other defendants who were sentenced years later would be entitled to resentencing based on a later-discovered error, but that the defendants in question would not be entitled to the same remedy for roughly the same error; or (3) that the jury’s death recommendation would be treated as if it were decisive, despite the judge’s instruction that the jury’s recommendation was merely advisory. Had jurors known about these issues at the time of sentencing, some might have hesitated before recommending a death sentence. At least a few might have recommended a life sentence instead. The result is that some defendants who have lived under threat of execution for decades might never have been sentenced to death in the first place.

“The flaws in the current practice of capital punishment could often cast serious doubt on the death sentences imposed in these and other capital cases. Rather than attempting to address the flaws in piecemeal fashion, however, I remain of the view that “it would be wiser to reconsider the root cause of the problem—the constitutionality of the death penalty itself.”

Two more petitions for a writ of certiorari were denied on Monday by the Supreme Court of the United States in capital cases coming out of Florida. 

They are dealing with review of current Florida Death Row inmates’ sentences where they were sentenced to die under a statutory scheme deemed unconstitutional by the High Court. 

Florida Death Row Sentences Under Unconstitutional System Denied SCOTUS Review

Without more, let us all consider the words of Justice Sotomayor in her dissent published in the cases of Guardado v. Jones and Cozzie v. Florida: 

JUSTICE SOTOMAYOR, dissenting from the denial of certiorari.

Twice now this Court has declined to vacate and remand to the Florida Supreme Court in cases where that court failed to address a substantial Eighth Amendment challenge to capital defendants’ sentences, and twice I have dissented from that inaction. See Truehill v. Florida, 583 U. S. ___, ___ (2017); Middleton v. Florida, 583 U. S. ___, ___ (2018). Four petitioners were involved in those cases.

Today we add two more to the list, for a total of at least six capital defendants who now face execution by the State without having received full consideration of their claims.

It should not be necessary for me to explain again why petitioners’ challenges are substantial, why the Florida Supreme Court should have addressed those challenges, or why this Court has an obligation to intervene. Nevertheless, recent developments at the Florida Supreme Court compel me to dissent in full once again.

As a reminder, like the petitioners in Truehill and Middleton, Jesse Guardado and Steven Cozzie challenge their death sentences pursuant to Caldwell v. Mississippi, 472 U.S. 320 (1985). I summarized those challenges in Middleton as follows:

[Petitioners] were sentenced to death under a Florida capital sentencing scheme that this Court has since declared unconstitutional. See Hurst v. Florida, 577 U. S. ___ (2016). Relying on the unanimity of the juries’ recommendations of death, the Florida Supreme Court post-Hurst declined to disturb the petitioners’ death sentences, reasoning that the unanimity ensured that jurors had made the necessary findings of fact under Hurst. By doing so, the Florida Supreme Court effectively transformed the pre-Hurst jury recommendations into binding findings of fact with respect to petitioners’ death sentences. 583 U. S., at ___-___ (slip op., at 1-2) (dissenting from denial of certiorari).
Reliance on those pre-Hurst recommendations, rendered after the juries repeatedly were instructed that their role was merely advisory, implicates Caldwell, where this Court recognized that "the uncorrected suggestion that the responsibility for any ultimate determination of death will rest with others presents an intolerable danger that the jury will in fact choose to minimize the importance of its role," in contravention of the Eighth Amendment. 472 U. S., at 333.

Following the dissent from the denial of certiorari in Truehill, the Florida Supreme Court has on at least two occasions taken the position that it has, in fact, considered and rejected petitioners’ Caldwell-based challenges.1 In Franklin v. State, ___ So. 3d ___, 2018 WL 897427 (Feb. 15, 2018) (per curiam), the Florida Supreme Court stated that, "prior to Hurst, [it] repeatedly rejected Caldwell challenges to the standard jury instructions." Id., at *3. The decisions it cited in support of that pre-Hurst precedent rely on one fact: "Informing the jury that its recommended sentence is `advisory’ is a correct statement of Florida law and does not violate Caldwell." Rigterink v. State, 66 So.3d 866, 897 (Fla. 2011) (per curiam); Globe v. State, 877 So.2d 663, 673-674 (Fla. 2004) (per curiam) (stating that it has rejected Caldwell challenges to the standard jury instructions, citing cases that similarly rely on the fact that the instructions accurately reflect the advisory nature of the jurors’ role). But of course, "the rationale underlying [this] previous rejection of the Caldwell challenge [has] now [been] undermined by this Court in Hurst," Truehill, 583 U. S., at ___ (slip op., at 2), and the Florida Supreme Court must therefore "grapple with the Eighth Amendment implications of [its subsequent post-Hurst] holding" that "then-advisory jury findings are now binding and sufficient to satisfy Hurst," Middleton, 583 U. S., at ___ (slip op., at 2). Its pre-Hurst precedent thus does not absolve the Florida Supreme Court from addressing petitioners’ new post-Hurst Caldwell-based challenges.

The Florida Supreme Court in Franklin did not stop there, however. It went on to state that it had "also rejected Caldwell-related Hurst claims" more recently, citing Truehill v. State, 211 So.3d 930 (Fla. 2017) (per curiam), and Oliver v. State, 214 So.3d 606 (Fla. 2017) (per curiam), noting that "the defendants in Oliver and Truehill petitioned the United States Supreme Court for a writ of certiorari to review their Caldwell claims, which the Court denied." Franklin, 2018 WL 897427, *3. This is a surprising statement, because Quentin Truehill and Terence Oliver were the two petitioners whose claims were at issue in my dissent in Truehill. Franklin did not discuss that dissent, joined by two other Justices, which specifically noted that "the Florida Supreme Court has failed to address" the important Caldwell-based challenge. Truehill, 583 U. S., at ___ (slip op., at 1). Earlier this month, in rejecting a motion to vacate a sentence brought by petitioner Jesse Guardado, the Florida Supreme Court again held that it had "considered and rejected" post-Hurst Caldwell-based challenges, citing Franklin, 2018 WL 897427, and Truehill, 211 So.3d 930. Guardado v. State, ___ So. 3d ___, 2018 WL 1193196, *2 (Mar. 8, 2018).2

It is hard to understand how the Florida Supreme Court "considered and rejected" these Caldwell-based challenges based on its decisions in Truehill and Oliver. Those cases did not mention or discuss Caldwell. Nor did they mention or discuss the fundamental Eighth Amendment principle it announced: "It is constitutionally impermissible to rest a death sentence on a determination made by a sentencer who has been led to believe that the responsibility for determining the appropriateness of the defendant’s death rests elsewhere." Caldwell, 472 U. S., at 328-329. In neither Truehill nor Oliver did the Florida Supreme Court discuss the grave Eighth Amendment concerns implicated by its finding that the Hurst violations in those cases are harmless, a conclusion that transforms those advisory jury recommendations into binding findings of fact. Although the Florida Supreme Court noted in Truehill that the defendant in that case "contends that he is entitled to relief pursuant to Hurst v. Florida because the jury in his case was repeatedly instructed regarding the non-binding nature of its verdict," 211 So. 3d, at 955, that was the first and last reference to that argument. There was absolutely no reference to the argument in Oliver. 214 So.3d 606.3

Therefore, the Florida Supreme Court has (again)4 failed to address an important and substantial Eighth Amendment challenge to capital defendants’ sentences post-Hurst. Nothing in its pre-Hurst precedent, nor in its opinions in Truehill and Oliver, addresses or resolves these substantial Caldwell-based challenges. This Court can and should intervene in the face of this troubling situation.

I dissent.

Foot Notes

1. The cases in which the Florida Supreme Court has taken this position, i.e., that it has considered and rejected the Caldwell-based claims discussed herein, are not the ones currently under review before our Court in these petitions.


2. As petitioner Guardado explained in his supplemental brief, in addition to the postconviction motion that forms the basis of the petition currently before our Court, he also filed a motion to vacate his sentence. See Supp. Brief for Petitioner 1. It was with respect to that motion that the Florida Supreme Court issued the opinion stating that it had "considered and rejected" the Caldwell-based challenge. No mention of the Caldwell-based claim was made in the Florida Supreme Court opinion directly under review in this petition. 226 So.3d 213 (2017). In fact, petitioner Guardado filed a motion with the Florida Supreme Court for rehearing and clarification of the denial of his postconviction motion, noting, inter alia, that the opinion "unreasonably omitted any consideration or discussion of [his] arguments regarding the interplay between Caldwell and Hurst." App. to Pet. for Cert. in No. 17-7171, p. 68a. The Florida Supreme Court denied the motion in an unreasoned one-line order. See id., at 7a. Petitioner Steven Cozzie also moved for rehearing below, similarly arguing in part that the Florida Supreme Court "overlooked the effect of instructing [his] jury many times that its recommendation was advisory only," citing Caldwell. App. to Pet. for Cert. in No. 17-7545, p. 66a. The Florida Supreme Court also denied the motion in an unreasoned one-line order. See id., at 43a.


3. Tellingly, in neither Franklin nor Guardado did the Florida Supreme Court supply a pincite for its "consider[ation] and reject[ion]" in Truehill and Oliver of these Caldwell-based claims.


4. "Toutes choses sont dites déjà; mais comme personne n’écoute, il faut toujours recommencer." Gide, Le Traité du Narcisse 8 (1892), in Le Traité du Narcisse 104 (R. Robidoux ed. 1978) ("Everything has been said already; but as no one listens, we must always begin again").

Last week, we posted about a bill moving through the Florida House of Representatives in response to the SCOTUS ruling in Hurst, finding that the current Florida death penalty statute is unconstitutional.

Florida Senate Bill Takes Different Stance on Florida Death Penalty

There is also a new bill moving through the Florida Senate that also seeks to become the new Florida statute on capital punishment.

It is SB 7068, entitled Sentencing for Capital Felonies, and you can track it online here.

https://www.flsenate.gov/Session/Bill/2016/7068

This Version Requires Unanimous Jury Before Death Penalty Could Be Imposed

The version of this bill, as it appeared on February 9, 2016, is shown below. 

Note the following: 

  1. it would require a UNANIMOUS JURY RECOMMENDATION before a sentence of death could be given.
  2. This jury must be UNANIMOUS on EVERY AGGRAVATING FACTOR, TOO. 
  3. Judges cannot OVERRIDE a jury’s recommendation of a life sentence and opt for capital punishment under this new proposed law. 

 

Text of the Senate Version of New Florida Death Penalty Law:

       Florida Senate - 2016                                    SB 7068
       
       
        
       By the Committee on Criminal Justice
       
       591-03187-16                                          20167068__
    1                        A bill to be entitled                      
    2         An act relating to sentencing for capital felonies;
    3         amending s. 775.082, F.S.; conforming a provision to
    4         changes made by the act; amending s. 782.04, F.S.;
    5         requiring the prosecutor to give notice to the
    6         defendant and to file the notice with the court within
    7         a certain timeframe if the prosecutor intends to seek
    8         the death penalty; amending ss. 921.141 and 921.142,
    9         F.S.; requiring juries to determine the existence of
   10         aggravating factors, if any, in the penalty phase of
   11         capital cases; specifying a standard of proof for such
   12         factors; requiring unanimity for such findings;
   13         requiring a jury to make a recommendation to the court
   14         whether the defendant shall be sentenced to life
   15         imprisonment or death; specifying considerations for
   16         such a recommendation; requiring unanimity to support
   17         a recommendation of a sentence of death; requiring a
   18         sentence of life imprisonment without the possibility
   19         of parole in certain circumstances; requiring the
   20         court to enter an order meeting specified requirements
   21         in each case in which it imposes a death sentence;
   22         deleting provisions relating to advisory sentencing by
   23         juries and findings by the court in support of
   24         sentences of death; reenacting s. 794.011(2)(a), F.S.,
   25         relating to sexual battery, to incorporate the
   26         amendment made to s. 921.141, F.S., in a reference
   27         thereto; reenacting s. 893.135(1)(b) through (l),
   28         F.S., relating to trafficking in controlled
   29         substances, to incorporate the amendment made to s.
   30         921.142, F.S., in references thereto; providing
   31         applicability; providing an effective date.
   32          
   33  Be It Enacted by the Legislature of the State of Florida:
   34  
   35         Section 1. Paragraph (a) of subsection (1) of section
   36  775.082, Florida Statutes, is amended to read:
   37         775.082 Penalties; applicability of sentencing structures;
   38  mandatory minimum sentences for certain reoffenders previously
   39  released from prison.—
   40         (1)(a) Except as provided in paragraph (b), a person who
   41  has been convicted of a capital felony shall be punished by
   42  death if the proceeding held to determine sentence according to
   43  the procedure set forth in s. 921.141 results in a determination
   44  findings by the court that such person shall be punished by
   45  death, otherwise such person shall be punished by life
   46  imprisonment and shall be ineligible for parole.
   47         Section 2. Subsection (1) of section 782.04, Florida
   48  Statutes, is amended to read:
   49         782.04 Murder.—
   50         (1)(a) The unlawful killing of a human being:
   51         1. When perpetrated from a premeditated design to effect
   52  the death of the person killed or any human being;
   53         2. When committed by a person engaged in the perpetration
   54  of, or in the attempt to perpetrate, any:
   55         a. Trafficking offense prohibited by s. 893.135(1),
   56         b. Arson,
   57         c. Sexual battery,
   58         d. Robbery,
   59         e. Burglary,
   60         f. Kidnapping,
   61         g. Escape,
   62         h. Aggravated child abuse,
   63         i. Aggravated abuse of an elderly person or disabled adult,
   64         j. Aircraft piracy,
   65         k. Unlawful throwing, placing, or discharging of a
   66  destructive device or bomb,
   67         l. Carjacking,
   68         m. Home-invasion robbery,
   69         n. Aggravated stalking,
   70         o. Murder of another human being,
   71         p. Resisting an officer with violence to his or her person,
   72         q. Aggravated fleeing or eluding with serious bodily injury
   73  or death,
   74         r. Felony that is an act of terrorism or is in furtherance
   75  of an act of terrorism; or
   76         3. Which resulted from the unlawful distribution of any
   77  substance controlled under s. 893.03(1), cocaine as described in
   78  s. 893.03(2)(a)4., opium or any synthetic or natural salt,
   79  compound, derivative, or preparation of opium, or methadone by a
   80  person 18 years of age or older, when such drug is proven to be
   81  the proximate cause of the death of the user,
   82  
   83  is murder in the first degree and constitutes a capital felony,
   84  punishable as provided in s. 775.082.
   85         (b) In all cases under this section, the procedure set
   86  forth in s. 921.141 shall be followed in order to determine
   87  sentence of death or life imprisonment. If the prosecutor
   88  intends to seek the death penalty, the prosecutor must give
   89  notice to the defendant and file the notice with the court
   90  within 45 days after arraignment. The notice must contain a list
   91  of the aggravating factors the state intends to prove and has
   92  reason to believe it can prove beyond a reasonable doubt. The
   93  court may allow the prosecutor to amend the notice upon a
   94  showing of good cause.
   95         Section 3. Section 921.141, Florida Statutes, is amended to
   96  read:
   97         921.141 Sentence of death or life imprisonment for capital
   98  felonies; further proceedings to determine sentence.—
   99         (1) SEPARATE PROCEEDINGS ON ISSUE OF PENALTY.—Upon
  100  conviction or adjudication of guilt of a defendant of a capital
  101  felony, the court shall conduct a separate sentencing proceeding
  102  to determine whether the defendant should be sentenced to death
  103  or life imprisonment as authorized by s. 775.082. The proceeding
  104  shall be conducted by the trial judge before the trial jury as
  105  soon as practicable. If, through impossibility or inability, the
  106  trial jury is unable to reconvene for a hearing on the issue of
  107  penalty, having determined the guilt of the accused, the trial
  108  judge may summon a special juror or jurors as provided in
  109  chapter 913 to determine the issue of the imposition of the
  110  penalty. If the trial jury has been waived, or if the defendant
  111  pleaded guilty, the sentencing proceeding shall be conducted
  112  before a jury impaneled for that purpose, unless waived by the
  113  defendant. In the proceeding, evidence may be presented as to
  114  any matter that the court deems relevant to the nature of the
  115  crime and the character of the defendant and shall include
  116  matters relating to any of the aggravating factors enumerated in
  117  subsection (6) and for which notice has been provided pursuant
  118  to s. 782.04(1)(b) or mitigating circumstances enumerated in
  119  subsection (7) subsections (5) and (6). Any such evidence that
  120  which the court deems to have probative value may be received,
  121  regardless of its admissibility under the exclusionary rules of
  122  evidence, provided the defendant is accorded a fair opportunity
  123  to rebut any hearsay statements. However, this subsection shall
  124  not be construed to authorize the introduction of any evidence
  125  secured in violation of the Constitution of the United States or
  126  the Constitution of the State of Florida. The state and the
  127  defendant or the defendant’s counsel shall be permitted to
  128  present argument for or against sentence of death.
  129         (2)FINDINGS AND RECOMMENDED SENTENCE BY THE JURY.—This
  130  subsection applies only if the defendant has not waived his or
  131  her right to a sentencing proceeding by a jury.
  132         (a)After hearing all of the evidence presented regarding
  133  aggravating factors and mitigating circumstances, the jury shall
  134  deliberate and determine if the state has proven, beyond a
  135  reasonable doubt, the existence of at least one aggravating
  136  factor set forth in subsection (6).
  137         (b)The jury shall return findings identifying each
  138  aggravating factor found to exist. A finding that an aggravating
  139  factor exists must be unanimous. If the jury:
  140         1. Does not unanimously find at least one aggravating
  141  factor, the defendant is ineligible for a sentence of death.
  142         2. Unanimously finds at least one aggravating factor, the
  143  defendant is eligible for a sentence of death and the jury shall
  144  make a recommendation to the court as to whether the defendant
  145  shall be sentenced to life imprisonment without the possibility
  146  of parole or to death. The recommendation shall be based on a
  147  weighing of all of the following:
  148         a.Whether sufficient aggravating factors exist.
  149         b.Whether aggravating factors exist which outweigh the
  150  mitigating circumstances found to exist.
  151         c.Based on the considerations in sub-subparagraphs a. and
  152  b., whether the defendant should be sentenced to life
  153  imprisonment without the possibility of parole or to death.
  154         (c)If a unanimous jury determines that the defendant
  155  should be sentenced to death, the jury’s recommendation to the
  156  court shall be a sentence of death. If a less than unanimous
  157  jury determines that the defendant should be sentenced to death,
  158  the jury’s recommendation to the court shall be a sentence of
  159  life imprisonment without the possibility of parole.
  160         (3)IMPOSITION OF SENTENCE OF LIFE IMPRISONMENT OR DEATH.—
  161         (a)If the jury has recommended a sentence of:
  162         1.Life imprisonment without the possibility of parole, the
  163  court shall impose the recommended sentence.
  164         2.Death, the court, after considering each aggravating
  165  factor found by the jury and all mitigating circumstances, may
  166  impose a sentence of life imprisonment without the possibility
  167  of parole or a sentence of death. The court may consider only an
  168  aggravating factor that was unanimously found to exist by the
  169  jury.
  170         (b)If the defendant waived his or her right to a
  171  sentencing proceeding by a jury, the court, after considering
  172  all aggravating factors and mitigating circumstances, may impose
  173  a sentence of life imprisonment without the possibility of
  174  parole or a sentence of death. The court may impose a sentence
  175  of death only if the court finds that at least one aggravating
  176  factor has been proven to exist beyond a reasonable doubt.
  177         (4)ORDER OF THE COURT IN SUPPORT OF SENTENCE OF DEATH.—In
  178  each case in which the court imposes a sentence of death, the
  179  court shall, considering the records of the trial and the
  180  sentencing proceedings, enter a written order addressing the
  181  aggravating factors set forth in subsection (6) found to exist,
  182  the mitigating circumstances in subsection (7) reasonably
  183  established by the evidence, whether there are sufficient
  184  aggravating factors to warrant the death penalty, and whether
  185  the aggravating factors outweigh the mitigating circumstances
  186  reasonably established by the evidence. If the court does not
  187  issue its order requiring the death sentence within 30 days
  188  after the rendition of the judgment and sentence, the court
  189  shall impose a sentence of life imprisonment without the
  190  possibility of parole in accordance with s. 775.082.
  191         (2)ADVISORY SENTENCE BY THE JURY.—After hearing all the
  192  evidence, the jury shall deliberate and render an advisory
  193  sentence to the court, based upon the following matters:
  194         (a)Whether sufficient aggravating circumstances exist as
  195  enumerated in subsection (5);
  196         (b)Whether sufficient mitigating circumstances exist which
  197  outweigh the aggravating circumstances found to exist; and
  198         (c)Based on these considerations, whether the defendant
  199  should be sentenced to life imprisonment or death.
  200         (3)FINDINGS IN SUPPORT OF SENTENCE OF DEATH.
  201  Notwithstanding the recommendation of a majority of the jury,
  202  the court, after weighing the aggravating and mitigating
  203  circumstances, shall enter a sentence of life imprisonment or
  204  death, but if the court imposes a sentence of death, it shall
  205  set forth in writing its findings upon which the sentence of
  206  death is based as to the facts:
  207         (a)That sufficient aggravating circumstances exist as
  208  enumerated in subsection (5), and
  209         (b)That there are insufficient mitigating circumstances to
  210  outweigh the aggravating circumstances.
  211  
  212  In each case in which the court imposes the death sentence, the
  213  determination of the court shall be supported by specific
  214  written findings of fact based upon the circumstances in
  215  subsections (5) and (6) and upon the records of the trial and
  216  the sentencing proceedings. If the court does not make the
  217  findings requiring the death sentence within 30 days after the
  218  rendition of the judgment and sentence, the court shall impose
  219  sentence of life imprisonment in accordance with s. 775.082.
  220         (5)(4) REVIEW OF JUDGMENT AND SENTENCE.—The judgment of
  221  conviction and sentence of death shall be subject to automatic
  222  review by the Supreme Court of Florida and disposition rendered
  223  within 2 years after the filing of a notice of appeal. Such
  224  review by the Supreme Court shall have priority over all other
  225  cases and shall be heard in accordance with rules adopted
  226  promulgated by the Supreme Court.
  227         (6)(5) AGGRAVATING FACTORS CIRCUMSTANCES.—Aggravating
  228  factors circumstances shall be limited to the following:
  229         (a) The capital felony was committed by a person previously
  230  convicted of a felony and under sentence of imprisonment or
  231  placed on community control or on felony probation.
  232         (b) The defendant was previously convicted of another
  233  capital felony or of a felony involving the use or threat of
  234  violence to the person.
  235         (c) The defendant knowingly created a great risk of death
  236  to many persons.
  237         (d) The capital felony was committed while the defendant
  238  was engaged, or was an accomplice, in the commission of, or an
  239  attempt to commit, or flight after committing or attempting to
  240  commit, any: robbery; sexual battery; aggravated child abuse;
  241  abuse of an elderly person or disabled adult resulting in great
  242  bodily harm, permanent disability, or permanent disfigurement;
  243  arson; burglary; kidnapping; aircraft piracy; or unlawful
  244  throwing, placing, or discharging of a destructive device or
  245  bomb.
  246         (e) The capital felony was committed for the purpose of
  247  avoiding or preventing a lawful arrest or effecting an escape
  248  from custody.
  249         (f) The capital felony was committed for pecuniary gain.
  250         (g) The capital felony was committed to disrupt or hinder
  251  the lawful exercise of any governmental function or the
  252  enforcement of laws.
  253         (h) The capital felony was especially heinous, atrocious,
  254  or cruel.
  255         (i) The capital felony was a homicide and was committed in
  256  a cold, calculated, and premeditated manner without any pretense
  257  of moral or legal justification.
  258         (j) The victim of the capital felony was a law enforcement
  259  officer engaged in the performance of his or her official
  260  duties.
  261         (k) The victim of the capital felony was an elected or
  262  appointed public official engaged in the performance of his or
  263  her official duties if the motive for the capital felony was
  264  related, in whole or in part, to the victim’s official capacity.
  265         (l) The victim of the capital felony was a person less than
  266  12 years of age.
  267         (m) The victim of the capital felony was particularly
  268  vulnerable due to advanced age or disability, or because the
  269  defendant stood in a position of familial or custodial authority
  270  over the victim.
  271         (n) The capital felony was committed by a criminal gang
  272  member, as defined in s. 874.03.
  273         (o) The capital felony was committed by a person designated
  274  as a sexual predator pursuant to s. 775.21 or a person
  275  previously designated as a sexual predator who had the sexual
  276  predator designation removed.
  277         (p) The capital felony was committed by a person subject to
  278  an injunction issued pursuant to s. 741.30 or s. 784.046, or a
  279  foreign protection order accorded full faith and credit pursuant
  280  to s. 741.315, and was committed against the petitioner who
  281  obtained the injunction or protection order or any spouse,
  282  child, sibling, or parent of the petitioner.
  283         (7)(6) MITIGATING CIRCUMSTANCES.—Mitigating circumstances
  284  shall be the following:
  285         (a) The defendant has no significant history of prior
  286  criminal activity.
  287         (b) The capital felony was committed while the defendant
  288  was under the influence of extreme mental or emotional
  289  disturbance.
  290         (c) The victim was a participant in the defendant’s conduct
  291  or consented to the act.
  292         (d) The defendant was an accomplice in the capital felony
  293  committed by another person and his or her participation was
  294  relatively minor.
  295         (e) The defendant acted under extreme duress or under the
  296  substantial domination of another person.
  297         (f) The capacity of the defendant to appreciate the
  298  criminality of his or her conduct or to conform his or her
  299  conduct to the requirements of law was substantially impaired.
  300         (g) The age of the defendant at the time of the crime.
  301         (h) The existence of any other factors in the defendant’s
  302  background that would mitigate against imposition of the death
  303  penalty.
  304         (8)(7) VICTIM IMPACT EVIDENCE.—Once the prosecution has
  305  provided evidence of the existence of one or more aggravating
  306  factors circumstances as described in subsection (6) (5), the
  307  prosecution may introduce, and subsequently argue, victim impact
  308  evidence to the jury. Such evidence shall be designed to
  309  demonstrate the victim’s uniqueness as an individual human being
  310  and the resultant loss to the community’s members by the
  311  victim’s death. Characterizations and opinions about the crime,
  312  the defendant, and the appropriate sentence shall not be
  313  permitted as a part of victim impact evidence.
  314         (9)(8) APPLICABILITY.—This section does not apply to a
  315  person convicted or adjudicated guilty of a capital drug
  316  trafficking felony under s. 893.135.
  317         Section 4. Section 921.142, Florida Statutes, is amended to
  318  read:
  319         921.142 Sentence of death or life imprisonment for capital
  320  drug trafficking felonies; further proceedings to determine
  321  sentence.—
  322         (1) FINDINGS.—The Legislature finds that trafficking in
  323  cocaine or opiates carries a grave risk of death or danger to
  324  the public; that a reckless disregard for human life is implicit
  325  in knowingly trafficking in cocaine or opiates; and that persons
  326  who traffic in cocaine or opiates may be determined by the trier
  327  of fact to have a culpable mental state of reckless indifference
  328  or disregard for human life.
  329         (2) SEPARATE PROCEEDINGS ON ISSUE OF PENALTY.—Upon
  330  conviction or adjudication of guilt of a defendant of a capital
  331  felony under s. 893.135, the court shall conduct a separate
  332  sentencing proceeding to determine whether the defendant should
  333  be sentenced to death or life imprisonment as authorized by s.
  334  775.082. The proceeding shall be conducted by the trial judge
  335  before the trial jury as soon as practicable. If, through
  336  impossibility or inability, the trial jury is unable to
  337  reconvene for a hearing on the issue of penalty, having
  338  determined the guilt of the accused, the trial judge may summon
  339  a special juror or jurors as provided in chapter 913 to
  340  determine the issue of the imposition of the penalty. If the
  341  trial jury has been waived, or if the defendant pleaded guilty,
  342  the sentencing proceeding shall be conducted before a jury
  343  impaneled for that purpose, unless waived by the defendant. In
  344  the proceeding, evidence may be presented as to any matter that
  345  the court deems relevant to the nature of the crime and the
  346  character of the defendant and shall include matters relating to
  347  any of the aggravating factors enumerated in subsection (7) and
  348  for which notice has been provided pursuant to s. 782.04(1)(b)
  349  or mitigating circumstances enumerated in subsection (8)
  350  subsections (6) and (7). Any such evidence that which the court
  351  deems to have probative value may be received, regardless of its
  352  admissibility under the exclusionary rules of evidence, provided
  353  the defendant is accorded a fair opportunity to rebut any
  354  hearsay statements. However, this subsection shall not be
  355  construed to authorize the introduction of any evidence secured
  356  in violation of the Constitution of the United States or the
  357  Constitution of the State of Florida. The state and the
  358  defendant or the defendant’s counsel shall be permitted to
  359  present argument for or against sentence of death.
  360         (3)FINDINGS AND RECOMMENDED SENTENCE BY THE JURY.—This
  361  subsection applies only if the defendant has not waived his or
  362  her right to a sentencing proceeding by a jury.
  363         (a)After hearing all of the evidence presented regarding
  364  aggravating factors and mitigating circumstances, the jury shall
  365  deliberate and determine if the state has proven, beyond a
  366  reasonable doubt, the existence of at least one aggravating
  367  factor set forth in subsection (7).
  368         (b)The jury shall return findings identifying each
  369  aggravating factor found to exist. A finding that an aggravating
  370  factor exists must be unanimous. If the jury:
  371         1. Does not unanimously find at least one aggravating
  372  factor, the defendant is ineligible for a sentence of death.
  373         2. Unanimously finds at least one aggravating factor, the
  374  defendant is eligible for a sentence of death and the jury shall
  375  make a recommendation to the court as to whether the defendant
  376  shall be sentenced to life imprisonment without the possibility
  377  of parole or to death. The recommendation shall be based on a
  378  weighing of all of the following:
  379         a.Whether sufficient aggravating factors exist.
  380         b.Whether aggravating factors exist which outweigh the
  381  mitigating circumstances found to exist.
  382         c.Based on the considerations in sub-subparagraphs a. and
  383  b., whether the defendant should be sentenced to life
  384  imprisonment without the possibility of parole or to death.
  385         (c)If a unanimous jury determines that the defendant
  386  should be sentenced to death, the jury’s recommendation to the
  387  court shall be a sentence of death. If less than a unanimous
  388  jury determines that the defendant should be sentenced to death,
  389  the jury’s recommendation to the court shall be a sentence of
  390  life imprisonment without the possibility of parole.
  391         (4)IMPOSITION OF SENTENCE OF LIFE IMPRISONMENT OR DEATH.—
  392         (a)If the jury has recommended a sentence of:
  393         1.Life imprisonment without the possibility of parole, the
  394  court shall impose the recommended sentence.
  395         2.Death, the court, after considering each aggravating
  396  factor found by the jury and all mitigating circumstances, may
  397  impose a sentence of life imprisonment without the possibility
  398  of parole or a sentence of death. The court may consider only an
  399  aggravating factor that was unanimously found to exist by the
  400  jury.
  401         (b)If the defendant waived his or her right to a
  402  sentencing proceeding by a jury, the court, after considering
  403  all aggravating factors and mitigating circumstances, may impose
  404  a sentence of life imprisonment without the possibility of
  405  parole or a sentence of death. The court may impose a sentence
  406  of death only if the court finds at least one aggravating factor
  407  has been proven to exist beyond a reasonable doubt.
  408         (5)ORDER OF THE COURT IN SUPPORT OF SENTENCE OF DEATH.—In
  409  each case in which the court imposes a death sentence, the court
  410  shall, considering the records of the trial and the sentencing
  411  proceedings, enter a written order addressing the aggravating
  412  factors set forth in subsection (7) found to exist, the
  413  mitigating circumstances in subsection (8) reasonably
  414  established by the evidence, whether there are sufficient
  415  aggravating factors to warrant the death penalty, and whether
  416  the aggravating factors outweigh the mitigating circumstances
  417  reasonably established by the evidence. If the court does not
  418  issue its order requiring the death sentence within 30 days
  419  after the rendition of the judgment and sentence, the court
  420  shall impose a sentence of life imprisonment without the
  421  possibility of parole in accordance with s. 775.082.
  422         (3)ADVISORY SENTENCE BY THE JURY.—After hearing all the
  423  evidence, the jury shall deliberate and render an advisory
  424  sentence to the court, based upon the following matters:
  425         (a)Whether sufficient aggravatingcircumstances exist as
  426  enumerated in subsection (6);
  427         (b)Whether sufficient mitigating circumstances exist which
  428  outweigh the aggravating circumstances found to exist; and
  429         (c)Based on these considerations, whether the defendant
  430  should be sentenced to life imprisonment or death.
  431         (4)FINDINGS IN SUPPORT OF SENTENCE OF DEATH.
  432  Notwithstanding the recommendation of a majority of the jury,
  433  the court, after weighing the aggravating and mitigating
  434  circumstances, shall enter a sentence of life imprisonment or
  435  death, but if the court imposes a sentence of death, it shall
  436  set forth in writing its findings upon which the sentence of
  437  death is based as to the facts:
  438         (a)That sufficient aggravating circumstances exist as
  439  enumerated in subsection (6), and
  440         (b)That there are insufficient mitigating circumstances to
  441  outweigh the aggravating circumstances.
  442  
  443  In each case in which the court imposes the death sentence, the
  444  determination of the court shall be supported by specific
  445  written findings of fact based upon the circumstances in
  446  subsections (6) and (7) and upon the records of the trial and
  447  the sentencing proceedings. If the court does not make the
  448  findings requiring the death sentence within 30 days after the
  449  rendition of the judgment and sentence, the court shall impose
  450  sentence of life imprisonment in accordance with s. 775.082, and
  451  that person shall be ineligible for parole.
  452         (6)(5) REVIEW OF JUDGMENT AND SENTENCE.—The judgment of
  453  conviction and sentence of death shall be subject to automatic
  454  review and disposition rendered by the Supreme Court of Florida
  455  within 2 years after the filing of a notice of appeal. Such
  456  review by the Supreme Court shall have priority over all other
  457  cases and shall be heard in accordance with rules promulgated by
  458  the Supreme Court.
  459         (7)(6) AGGRAVATING FACTORS CIRCUMSTANCES.—Aggravating
  460  factors circumstances shall be limited to the following:
  461         (a) The capital felony was committed by a person under a
  462  sentence of imprisonment.
  463         (b) The defendant was previously convicted of another
  464  capital felony or of a state or federal offense involving the
  465  distribution of a controlled substance which that is punishable
  466  by a sentence of at least 1 year of imprisonment.
  467         (c) The defendant knowingly created grave risk of death to
  468  one or more persons such that participation in the offense
  469  constituted reckless indifference or disregard for human life.
  470         (d) The defendant used a firearm or knowingly directed,
  471  advised, authorized, or assisted another to use a firearm to
  472  threaten, intimidate, assault, or injure a person in committing
  473  the offense or in furtherance of the offense.
  474         (e) The offense involved the distribution of controlled
  475  substances to persons under the age of 18 years, the
  476  distribution of controlled substances within school zones, or
  477  the use or employment of persons under the age of 18 years in
  478  aid of distribution of controlled substances.
  479         (f) The offense involved distribution of controlled
  480  substances known to contain a potentially lethal adulterant.
  481         (g) The defendant:
  482         1. Intentionally killed the victim;
  483         2. Intentionally inflicted serious bodily injury that which
  484  resulted in the death of the victim; or
  485         3. Intentionally engaged in conduct intending that the
  486  victim be killed or that lethal force be employed against the
  487  victim, which resulted in the death of the victim.
  488         (h) The defendant committed the offense as consideration
  489  for the receipt, or in the expectation of the receipt, of
  490  anything of pecuniary value.
  491         (i) The defendant committed the offense after planning and
  492  premeditation.
  493         (j) The defendant committed the offense in a heinous,
  494  cruel, or depraved manner in that the offense involved torture
  495  or serious physical abuse to the victim.
  496         (8)(7) MITIGATING CIRCUMSTANCES.—Mitigating circumstances
  497  shall include the following:
  498         (a) The defendant has no significant history of prior
  499  criminal activity.
  500         (b) The capital felony was committed while the defendant
  501  was under the influence of extreme mental or emotional
  502  disturbance.
  503         (c) The defendant was an accomplice in the capital felony
  504  committed by another person, and the defendant’s participation
  505  was relatively minor.
  506         (d) The defendant was under extreme duress or under the
  507  substantial domination of another person.
  508         (e) The capacity of the defendant to appreciate the
  509  criminality of her or his conduct or to conform her or his
  510  conduct to the requirements of law was substantially impaired.
  511         (f) The age of the defendant at the time of the offense.
  512         (g) The defendant could not have reasonably foreseen that
  513  her or his conduct in the course of the commission of the
  514  offense would cause or would create a grave risk of death to one
  515  or more persons.
  516         (h) The existence of any other factors in the defendant’s
  517  background that would mitigate against imposition of the death
  518  penalty.
  519         (9)(8) VICTIM IMPACT EVIDENCE.—Once the prosecution has
  520  provided evidence of the existence of one or more aggravating
  521  factors circumstances as described in subsection (7) (6), the
  522  prosecution may introduce, and subsequently argue, victim impact
  523  evidence. Such evidence shall be designed to demonstrate the
  524  victim’s uniqueness as an individual human being and the
  525  resultant loss to the community’s members by the victim’s death.
  526  Characterizations and opinions about the crime, the defendant,
  527  and the appropriate sentence shall not be permitted as a part of
  528  victim impact evidence.
  529         Section 5. For the purpose of incorporating the amendment
  530  made by this act to section 921.141, Florida Statutes, in a
  531  reference thereto, paragraph (a) of subsection (2) of section
  532  794.011, Florida Statutes, is reenacted to read:
  533         794.011 Sexual battery.—
  534         (2)(a) A person 18 years of age or older who commits sexual
  535  battery upon, or in an attempt to commit sexual battery injures
  536  the sexual organs of, a person less than 12 years of age commits
  537  a capital felony, punishable as provided in ss. 775.082 and
  538  921.141.
  539         Section 6. For the purpose of incorporating the amendment
  540  made by this act to section 921.142, Florida Statutes, in
  541  references thereto, paragraphs (b) through (l) of subsection (1)
  542  of section 893.135, Florida Statutes, are reenacted to read:
  543         893.135 Trafficking; mandatory sentences; suspension or
  544  reduction of sentences; conspiracy to engage in trafficking.—
  545         (1) Except as authorized in this chapter or in chapter 499
  546  and notwithstanding the provisions of s. 893.13:
  547         (b)1. Any person who knowingly sells, purchases,
  548  manufactures, delivers, or brings into this state, or who is
  549  knowingly in actual or constructive possession of, 28 grams or
  550  more of cocaine, as described in s. 893.03(2)(a)4., or of any
  551  mixture containing cocaine, but less than 150 kilograms of
  552  cocaine or any such mixture, commits a felony of the first
  553  degree, which felony shall be known as “trafficking in cocaine,”
  554  punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
  555  If the quantity involved:
  556         a. Is 28 grams or more, but less than 200 grams, such
  557  person shall be sentenced to a mandatory minimum term of
  558  imprisonment of 3 years, and the defendant shall be ordered to
  559  pay a fine of $50,000.
  560         b. Is 200 grams or more, but less than 400 grams, such
  561  person shall be sentenced to a mandatory minimum term of
  562  imprisonment of 7 years, and the defendant shall be ordered to
  563  pay a fine of $100,000.
  564         c. Is 400 grams or more, but less than 150 kilograms, such
  565  person shall be sentenced to a mandatory minimum term of
  566  imprisonment of 15 calendar years and pay a fine of $250,000.
  567         2. Any person who knowingly sells, purchases, manufactures,
  568  delivers, or brings into this state, or who is knowingly in
  569  actual or constructive possession of, 150 kilograms or more of
  570  cocaine, as described in s. 893.03(2)(a)4., commits the first
  571  degree felony of trafficking in cocaine. A person who has been
  572  convicted of the first degree felony of trafficking in cocaine
  573  under this subparagraph shall be punished by life imprisonment
  574  and is ineligible for any form of discretionary early release
  575  except pardon or executive clemency or conditional medical
  576  release under s. 947.149. However, if the court determines that,
  577  in addition to committing any act specified in this paragraph:
  578         a. The person intentionally killed an individual or
  579  counseled, commanded, induced, procured, or caused the
  580  intentional killing of an individual and such killing was the
  581  result; or
  582         b. The person’s conduct in committing that act led to a
  583  natural, though not inevitable, lethal result,
  584  
  585  such person commits the capital felony of trafficking in
  586  cocaine, punishable as provided in ss. 775.082 and 921.142. Any
  587  person sentenced for a capital felony under this paragraph shall
  588  also be sentenced to pay the maximum fine provided under
  589  subparagraph 1.
  590         3. Any person who knowingly brings into this state 300
  591  kilograms or more of cocaine, as described in s. 893.03(2)(a)4.,
  592  and who knows that the probable result of such importation would
  593  be the death of any person, commits capital importation of
  594  cocaine, a capital felony punishable as provided in ss. 775.082
  595  and 921.142. Any person sentenced for a capital felony under
  596  this paragraph shall also be sentenced to pay the maximum fine
  597  provided under subparagraph 1.
  598         (c)1. A person who knowingly sells, purchases,
  599  manufactures, delivers, or brings into this state, or who is
  600  knowingly in actual or constructive possession of, 4 grams or
  601  more of any morphine, opium, hydromorphone, or any salt,
  602  derivative, isomer, or salt of an isomer thereof, including
  603  heroin, as described in s. 893.03(1)(b), (2)(a), (3)(c)3., or
  604  (3)(c)4., or 4 grams or more of any mixture containing any such
  605  substance, but less than 30 kilograms of such substance or
  606  mixture, commits a felony of the first degree, which felony
  607  shall be known as “trafficking in illegal drugs,” punishable as
  608  provided in s. 775.082, s. 775.083, or s. 775.084. If the
  609  quantity involved:
  610         a. Is 4 grams or more, but less than 14 grams, such person
  611  shall be sentenced to a mandatory minimum term of imprisonment
  612  of 3 years and shall be ordered to pay a fine of $50,000.
  613         b. Is 14 grams or more, but less than 28 grams, such person
  614  shall be sentenced to a mandatory minimum term of imprisonment
  615  of 15 years and shall be ordered to pay a fine of $100,000.
  616         c. Is 28 grams or more, but less than 30 kilograms, such
  617  person shall be sentenced to a mandatory minimum term of
  618  imprisonment of 25 years and shall be ordered to pay a fine of
  619  $500,000.
  620         2. A person who knowingly sells, purchases, manufactures,
  621  delivers, or brings into this state, or who is knowingly in
  622  actual or constructive possession of, 14 grams or more of
  623  hydrocodone, or any salt, derivative, isomer, or salt of an
  624  isomer thereof, or 14 grams or more of any mixture containing
  625  any such substance, commits a felony of the first degree, which
  626  felony shall be known as “trafficking in hydrocodone,”
  627  punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
  628  If the quantity involved:
  629         a. Is 14 grams or more, but less than 28 grams, such person
  630  shall be sentenced to a mandatory minimum term of imprisonment
  631  of 3 years and shall be ordered to pay a fine of $50,000.
  632         b. Is 28 grams or more, but less than 50 grams, such person
  633  shall be sentenced to a mandatory minimum term of imprisonment
  634  of 7 years and shall be ordered to pay a fine of $100,000.
  635         c. Is 50 grams or more, but less than 200 grams, such
  636  person shall be sentenced to a mandatory minimum term of
  637  imprisonment of 15 years and shall be ordered to pay a fine of
  638  $500,000.
  639         d. Is 200 grams or more, but less than 30 kilograms, such
  640  person shall be sentenced to a mandatory minimum term of
  641  imprisonment of 25 years and shall be ordered to pay a fine of
  642  $750,000.
  643         3. A person who knowingly sells, purchases, manufactures,
  644  delivers, or brings into this state, or who is knowingly in
  645  actual or constructive possession of, 7 grams or more of
  646  oxycodone, or any salt, derivative, isomer, or salt of an isomer
  647  thereof, or 7 grams or more of any mixture containing any such
  648  substance, commits a felony of the first degree, which felony
  649  shall be known as “trafficking in oxycodone,” punishable as
  650  provided in s. 775.082, s. 775.083, or s. 775.084. If the
  651  quantity involved:
  652         a. Is 7 grams or more, but less than 14 grams, such person
  653  shall be sentenced to a mandatory minimum term of imprisonment
  654  of 3 years and shall be ordered to pay a fine of $50,000.
  655         b. Is 14 grams or more, but less than 25 grams, such person
  656  shall be sentenced to a mandatory minimum term of imprisonment
  657  of 7 years and shall be ordered to pay a fine of $100,000.
  658         c. Is 25 grams or more, but less than 100 grams, such
  659  person shall be sentenced to a mandatory minimum term of
  660  imprisonment of 15 years and shall be ordered to pay a fine of
  661  $500,000.
  662         d. Is 100 grams or more, but less than 30 kilograms, such
  663  person shall be sentenced to a mandatory minimum term of
  664  imprisonment of 25 years and shall be ordered to pay a fine of
  665  $750,000.
  666         4. A person who knowingly sells, purchases, manufactures,
  667  delivers, or brings into this state, or who is knowingly in
  668  actual or constructive possession of, 30 kilograms or more of
  669  any morphine, opium, oxycodone, hydrocodone, hydromorphone, or
  670  any salt, derivative, isomer, or salt of an isomer thereof,
  671  including heroin, as described in s. 893.03(1)(b), (2)(a),
  672  (3)(c)3., or (3)(c)4., or 30 kilograms or more of any mixture
  673  containing any such substance, commits the first degree felony
  674  of trafficking in illegal drugs. A person who has been convicted
  675  of the first degree felony of trafficking in illegal drugs under
  676  this subparagraph shall be punished by life imprisonment and is
  677  ineligible for any form of discretionary early release except
  678  pardon or executive clemency or conditional medical release
  679  under s. 947.149. However, if the court determines that, in
  680  addition to committing any act specified in this paragraph:
  681         a. The person intentionally killed an individual or
  682  counseled, commanded, induced, procured, or caused the
  683  intentional killing of an individual and such killing was the
  684  result; or
  685         b. The person’s conduct in committing that act led to a
  686  natural, though not inevitable, lethal result,
  687  
  688  such person commits the capital felony of trafficking in illegal
  689  drugs, punishable as provided in ss. 775.082 and 921.142. A
  690  person sentenced for a capital felony under this paragraph shall
  691  also be sentenced to pay the maximum fine provided under
  692  subparagraph 1.
  693         5. A person who knowingly brings into this state 60
  694  kilograms or more of any morphine, opium, oxycodone,
  695  hydrocodone, hydromorphone, or any salt, derivative, isomer, or
  696  salt of an isomer thereof, including heroin, as described in s.
  697  893.03(1)(b), (2)(a), (3)(c)3., or (3)(c)4., or 60 kilograms or
  698  more of any mixture containing any such substance, and who knows
  699  that the probable result of such importation would be the death
  700  of a person, commits capital importation of illegal drugs, a
  701  capital felony punishable as provided in ss. 775.082 and
  702  921.142. A person sentenced for a capital felony under this
  703  paragraph shall also be sentenced to pay the maximum fine
  704  provided under subparagraph 1.
  705         (d)1. Any person who knowingly sells, purchases,
  706  manufactures, delivers, or brings into this state, or who is
  707  knowingly in actual or constructive possession of, 28 grams or
  708  more of phencyclidine or of any mixture containing
  709  phencyclidine, as described in s. 893.03(2)(b), commits a felony
  710  of the first degree, which felony shall be known as “trafficking
  711  in phencyclidine,” punishable as provided in s. 775.082, s.
  712  775.083, or s. 775.084. If the quantity involved:
  713         a. Is 28 grams or more, but less than 200 grams, such
  714  person shall be sentenced to a mandatory minimum term of
  715  imprisonment of 3 years, and the defendant shall be ordered to
  716  pay a fine of $50,000.
  717         b. Is 200 grams or more, but less than 400 grams, such
  718  person shall be sentenced to a mandatory minimum term of
  719  imprisonment of 7 years, and the defendant shall be ordered to
  720  pay a fine of $100,000.
  721         c. Is 400 grams or more, such person shall be sentenced to
  722  a mandatory minimum term of imprisonment of 15 calendar years
  723  and pay a fine of $250,000.
  724         2. Any person who knowingly brings into this state 800
  725  grams or more of phencyclidine or of any mixture containing
  726  phencyclidine, as described in s. 893.03(2)(b), and who knows
  727  that the probable result of such importation would be the death
  728  of any person commits capital importation of phencyclidine, a
  729  capital felony punishable as provided in ss. 775.082 and
  730  921.142. Any person sentenced for a capital felony under this
  731  paragraph shall also be sentenced to pay the maximum fine
  732  provided under subparagraph 1.
  733         (e)1. Any person who knowingly sells, purchases,
  734  manufactures, delivers, or brings into this state, or who is
  735  knowingly in actual or constructive possession of, 200 grams or
  736  more of methaqualone or of any mixture containing methaqualone,
  737  as described in s. 893.03(1)(d), commits a felony of the first
  738  degree, which felony shall be known as “trafficking in
  739  methaqualone,” punishable as provided in s. 775.082, s. 775.083,
  740  or s. 775.084. If the quantity involved:
  741         a. Is 200 grams or more, but less than 5 kilograms, such
  742  person shall be sentenced to a mandatory minimum term of
  743  imprisonment of 3 years, and the defendant shall be ordered to
  744  pay a fine of $50,000.
  745         b. Is 5 kilograms or more, but less than 25 kilograms, such
  746  person shall be sentenced to a mandatory minimum term of
  747  imprisonment of 7 years, and the defendant shall be ordered to
  748  pay a fine of $100,000.
  749         c. Is 25 kilograms or more, such person shall be sentenced
  750  to a mandatory minimum term of imprisonment of 15 calendar years
  751  and pay a fine of $250,000.
  752         2. Any person who knowingly brings into this state 50
  753  kilograms or more of methaqualone or of any mixture containing
  754  methaqualone, as described in s. 893.03(1)(d), and who knows
  755  that the probable result of such importation would be the death
  756  of any person commits capital importation of methaqualone, a
  757  capital felony punishable as provided in ss. 775.082 and
  758  921.142. Any person sentenced for a capital felony under this
  759  paragraph shall also be sentenced to pay the maximum fine
  760  provided under subparagraph 1.
  761         (f)1. Any person who knowingly sells, purchases,
  762  manufactures, delivers, or brings into this state, or who is
  763  knowingly in actual or constructive possession of, 14 grams or
  764  more of amphetamine, as described in s. 893.03(2)(c)2., or
  765  methamphetamine, as described in s. 893.03(2)(c)4., or of any
  766  mixture containing amphetamine or methamphetamine, or
  767  phenylacetone, phenylacetic acid, pseudoephedrine, or ephedrine
  768  in conjunction with other chemicals and equipment utilized in
  769  the manufacture of amphetamine or methamphetamine, commits a
  770  felony of the first degree, which felony shall be known as
  771  “trafficking in amphetamine,” punishable as provided in s.
  772  775.082, s. 775.083, or s. 775.084. If the quantity involved:
  773         a. Is 14 grams or more, but less than 28 grams, such person
  774  shall be sentenced to a mandatory minimum term of imprisonment
  775  of 3 years, and the defendant shall be ordered to pay a fine of
  776  $50,000.
  777         b. Is 28 grams or more, but less than 200 grams, such
  778  person shall be sentenced to a mandatory minimum term of
  779  imprisonment of 7 years, and the defendant shall be ordered to
  780  pay a fine of $100,000.
  781         c. Is 200 grams or more, such person shall be sentenced to
  782  a mandatory minimum term of imprisonment of 15 calendar years
  783  and pay a fine of $250,000.
  784         2. Any person who knowingly manufactures or brings into
  785  this state 400 grams or more of amphetamine, as described in s.
  786  893.03(2)(c)2., or methamphetamine, as described in s.
  787  893.03(2)(c)4., or of any mixture containing amphetamine or
  788  methamphetamine, or phenylacetone, phenylacetic acid,
  789  pseudoephedrine, or ephedrine in conjunction with other
  790  chemicals and equipment used in the manufacture of amphetamine
  791  or methamphetamine, and who knows that the probable result of
  792  such manufacture or importation would be the death of any person
  793  commits capital manufacture or importation of amphetamine, a
  794  capital felony punishable as provided in ss. 775.082 and
  795  921.142. Any person sentenced for a capital felony under this
  796  paragraph shall also be sentenced to pay the maximum fine
  797  provided under subparagraph 1.
  798         (g)1. Any person who knowingly sells, purchases,
  799  manufactures, delivers, or brings into this state, or who is
  800  knowingly in actual or constructive possession of, 4 grams or
  801  more of flunitrazepam or any mixture containing flunitrazepam as
  802  described in s. 893.03(1)(a) commits a felony of the first
  803  degree, which felony shall be known as “trafficking in
  804  flunitrazepam,” punishable as provided in s. 775.082, s.
  805  775.083, or s. 775.084. If the quantity involved:
  806         a. Is 4 grams or more but less than 14 grams, such person
  807  shall be sentenced to a mandatory minimum term of imprisonment
  808  of 3 years, and the defendant shall be ordered to pay a fine of
  809  $50,000.
  810         b. Is 14 grams or more but less than 28 grams, such person
  811  shall be sentenced to a mandatory minimum term of imprisonment
  812  of 7 years, and the defendant shall be ordered to pay a fine of
  813  $100,000.
  814         c. Is 28 grams or more but less than 30 kilograms, such
  815  person shall be sentenced to a mandatory minimum term of
  816  imprisonment of 25 calendar years and pay a fine of $500,000.
  817         2. Any person who knowingly sells, purchases, manufactures,
  818  delivers, or brings into this state or who is knowingly in
  819  actual or constructive possession of 30 kilograms or more of
  820  flunitrazepam or any mixture containing flunitrazepam as
  821  described in s. 893.03(1)(a) commits the first degree felony of
  822  trafficking in flunitrazepam. A person who has been convicted of
  823  the first degree felony of trafficking in flunitrazepam under
  824  this subparagraph shall be punished by life imprisonment and is
  825  ineligible for any form of discretionary early release except
  826  pardon or executive clemency or conditional medical release
  827  under s. 947.149. However, if the court determines that, in
  828  addition to committing any act specified in this paragraph:
  829         a. The person intentionally killed an individual or
  830  counseled, commanded, induced, procured, or caused the
  831  intentional killing of an individual and such killing was the
  832  result; or
  833         b. The person’s conduct in committing that act led to a
  834  natural, though not inevitable, lethal result,
  835  
  836  such person commits the capital felony of trafficking in
  837  flunitrazepam, punishable as provided in ss. 775.082 and
  838  921.142. Any person sentenced for a capital felony under this
  839  paragraph shall also be sentenced to pay the maximum fine
  840  provided under subparagraph 1.
  841         (h)1. Any person who knowingly sells, purchases,
  842  manufactures, delivers, or brings into this state, or who is
  843  knowingly in actual or constructive possession of, 1 kilogram or
  844  more of gamma-hydroxybutyric acid (GHB), as described in s.
  845  893.03(1)(d), or any mixture containing gamma-hydroxybutyric
  846  acid (GHB), commits a felony of the first degree, which felony
  847  shall be known as “trafficking in gamma-hydroxybutyric acid
  848  (GHB),” punishable as provided in s. 775.082, s. 775.083, or s.
  849  775.084. If the quantity involved:
  850         a. Is 1 kilogram or more but less than 5 kilograms, such
  851  person shall be sentenced to a mandatory minimum term of
  852  imprisonment of 3 years, and the defendant shall be ordered to
  853  pay a fine of $50,000.
  854         b. Is 5 kilograms or more but less than 10 kilograms, such
  855  person shall be sentenced to a mandatory minimum term of
  856  imprisonment of 7 years, and the defendant shall be ordered to
  857  pay a fine of $100,000.
  858         c. Is 10 kilograms or more, such person shall be sentenced
  859  to a mandatory minimum term of imprisonment of 15 calendar years
  860  and pay a fine of $250,000.
  861         2. Any person who knowingly manufactures or brings into
  862  this state 150 kilograms or more of gamma-hydroxybutyric acid
  863  (GHB), as described in s. 893.03(1)(d), or any mixture
  864  containing gamma-hydroxybutyric acid (GHB), and who knows that
  865  the probable result of such manufacture or importation would be
  866  the death of any person commits capital manufacture or
  867  importation of gamma-hydroxybutyric acid (GHB), a capital felony
  868  punishable as provided in ss. 775.082 and 921.142. Any person
  869  sentenced for a capital felony under this paragraph shall also
  870  be sentenced to pay the maximum fine provided under subparagraph
  871  1.
  872         (i)1. Any person who knowingly sells, purchases,
  873  manufactures, delivers, or brings into this state, or who is
  874  knowingly in actual or constructive possession of, 1 kilogram or
  875  more of gamma-butyrolactone (GBL), as described in s.
  876  893.03(1)(d), or any mixture containing gamma-butyrolactone
  877  (GBL), commits a felony of the first degree, which felony shall
  878  be known as “trafficking in gamma-butyrolactone (GBL),”
  879  punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
  880  If the quantity involved:
  881         a. Is 1 kilogram or more but less than 5 kilograms, such
  882  person shall be sentenced to a mandatory minimum term of
  883  imprisonment of 3 years, and the defendant shall be ordered to
  884  pay a fine of $50,000.
  885         b. Is 5 kilograms or more but less than 10 kilograms, such
  886  person shall be sentenced to a mandatory minimum term of
  887  imprisonment of 7 years, and the defendant shall be ordered to
  888  pay a fine of $100,000.
  889         c. Is 10 kilograms or more, such person shall be sentenced
  890  to a mandatory minimum term of imprisonment of 15 calendar years
  891  and pay a fine of $250,000.
  892         2. Any person who knowingly manufactures or brings into the
  893  state 150 kilograms or more of gamma-butyrolactone (GBL), as
  894  described in s. 893.03(1)(d), or any mixture containing gamma
  895  butyrolactone (GBL), and who knows that the probable result of
  896  such manufacture or importation would be the death of any person
  897  commits capital manufacture or importation of gamma
  898  butyrolactone (GBL), a capital felony punishable as provided in
  899  ss. 775.082 and 921.142. Any person sentenced for a capital
  900  felony under this paragraph shall also be sentenced to pay the
  901  maximum fine provided under subparagraph 1.
  902         (j)1. Any person who knowingly sells, purchases,
  903  manufactures, delivers, or brings into this state, or who is
  904  knowingly in actual or constructive possession of, 1 kilogram or
  905  more of 1,4-Butanediol as described in s. 893.03(1)(d), or of
  906  any mixture containing 1,4-Butanediol, commits a felony of the
  907  first degree, which felony shall be known as “trafficking in
  908  1,4-Butanediol,” punishable as provided in s. 775.082, s.
  909  775.083, or s. 775.084. If the quantity involved:
  910         a. Is 1 kilogram or more, but less than 5 kilograms, such
  911  person shall be sentenced to a mandatory minimum term of
  912  imprisonment of 3 years, and the defendant shall be ordered to
  913  pay a fine of $50,000.
  914         b. Is 5 kilograms or more, but less than 10 kilograms, such
  915  person shall be sentenced to a mandatory minimum term of
  916  imprisonment of 7 years, and the defendant shall be ordered to
  917  pay a fine of $100,000.
  918         c. Is 10 kilograms or more, such person shall be sentenced
  919  to a mandatory minimum term of imprisonment of 15 calendar years
  920  and pay a fine of $500,000.
  921         2. Any person who knowingly manufactures or brings into
  922  this state 150 kilograms or more of 1,4-Butanediol as described
  923  in s. 893.03(1)(d), or any mixture containing 1,4-Butanediol,
  924  and who knows that the probable result of such manufacture or
  925  importation would be the death of any person commits capital
  926  manufacture or importation of 1,4-Butanediol, a capital felony
  927  punishable as provided in ss. 775.082 and 921.142. Any person
  928  sentenced for a capital felony under this paragraph shall also
  929  be sentenced to pay the maximum fine provided under subparagraph
  930  1.
  931         (k)1. A person who knowingly sells, purchases,
  932  manufactures, delivers, or brings into this state, or who is
  933  knowingly in actual or constructive possession of, 10 grams or
  934  more of any of the following substances described in s.
  935  893.03(1)(c):
  936         a. 3,4-Methylenedioxymethamphetamine (MDMA);
  937         b. 4-Bromo-2,5-dimethoxyamphetamine;
  938         c. 4-Bromo-2,5-dimethoxyphenethylamine;
  939         d. 2,5-Dimethoxyamphetamine;
  940         e. 2,5-Dimethoxy-4-ethylamphetamine (DOET);
  941         f. N-ethylamphetamine;
  942         g. N-Hydroxy-3,4-methylenedioxyamphetamine;
  943         h. 5-Methoxy-3,4-methylenedioxyamphetamine;
  944         i. 4-methoxyamphetamine;
  945         j. 4-methoxymethamphetamine;
  946         k. 4-Methyl-2,5-dimethoxyamphetamine;
  947         l. 3,4-Methylenedioxy-N-ethylamphetamine;
  948         m. 3,4-Methylenedioxyamphetamine;
  949         n. N,N-dimethylamphetamine;
  950         o. 3,4,5-Trimethoxyamphetamine;
  951         p. 3,4-Methylenedioxymethcathinone;
  952         q. 3,4-Methylenedioxypyrovalerone (MDPV); or
  953         r. Methylmethcathinone,
  954  
  955  individually or analogs thereto or isomers thereto or in any
  956  combination of or any mixture containing any substance listed in
  957  sub-subparagraphs a.-r., commits a felony of the first degree,
  958  which felony shall be known as “trafficking in Phenethylamines,”
  959  punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
  960         2. If the quantity involved:
  961         a. Is 10 grams or more, but less than 200 grams, such
  962  person shall be sentenced to a mandatory minimum term of
  963  imprisonment of 3 years and shall be ordered to pay a fine of
  964  $50,000.
  965         b. Is 200 grams or more, but less than 400 grams, such
  966  person shall be sentenced to a mandatory minimum term of
  967  imprisonment of 7 years and shall be ordered to pay a fine of
  968  $100,000.
  969         c. Is 400 grams or more, such person shall be sentenced to
  970  a mandatory minimum term of imprisonment of 15 years and shall
  971  be ordered to pay a fine of $250,000.
  972         3. A person who knowingly manufactures or brings into this
  973  state 30 kilograms or more of any of the following substances
  974  described in s. 893.03(1)(c):
  975         a. 3,4-Methylenedioxymethamphetamine (MDMA);
  976         b. 4-Bromo-2,5-dimethoxyamphetamine;
  977         c. 4-Bromo-2,5-dimethoxyphenethylamine;
  978         d. 2,5-Dimethoxyamphetamine;
  979         e. 2,5-Dimethoxy-4-ethylamphetamine (DOET);
  980         f. N-ethylamphetamine;
  981         g. N-Hydroxy-3,4-methylenedioxyamphetamine;
  982         h. 5-Methoxy-3,4-methylenedioxyamphetamine;
  983         i. 4-methoxyamphetamine;
  984         j. 4-methoxymethamphetamine;
  985         k. 4-Methyl-2,5-dimethoxyamphetamine;
  986         l. 3,4-Methylenedioxy-N-ethylamphetamine;
  987         m. 3,4-Methylenedioxyamphetamine;
  988         n. N,N-dimethylamphetamine;
  989         o. 3,4,5-Trimethoxyamphetamine;
  990         p. 3,4-Methylenedioxymethcathinone;
  991         q. 3,4-Methylenedioxypyrovalerone (MDPV); or
  992         r. Methylmethcathinone,
  993  
  994  individually or analogs thereto or isomers thereto or in any
  995  combination of or any mixture containing any substance listed in
  996  sub-subparagraphs a.-r., and who knows that the probable result
  997  of such manufacture or importation would be the death of any
  998  person commits capital manufacture or importation of
  999  Phenethylamines, a capital felony punishable as provided in ss.
 1000  775.082 and 921.142. A person sentenced for a capital felony
 1001  under this paragraph shall also be sentenced to pay the maximum
 1002  fine provided under subparagraph 1.
 1003         (l)1. Any person who knowingly sells, purchases,
 1004  manufactures, delivers, or brings into this state, or who is
 1005  knowingly in actual or constructive possession of, 1 gram or
 1006  more of lysergic acid diethylamide (LSD) as described in s.
 1007  893.03(1)(c), or of any mixture containing lysergic acid
 1008  diethylamide (LSD), commits a felony of the first degree, which
 1009  felony shall be known as “trafficking in lysergic acid
 1010  diethylamide (LSD),” punishable as provided in s. 775.082, s.
 1011  775.083, or s. 775.084. If the quantity involved:
 1012         a. Is 1 gram or more, but less than 5 grams, such person
 1013  shall be sentenced to a mandatory minimum term of imprisonment
 1014  of 3 years, and the defendant shall be ordered to pay a fine of
 1015  $50,000.
 1016         b. Is 5 grams or more, but less than 7 grams, such person
 1017  shall be sentenced to a mandatory minimum term of imprisonment
 1018  of 7 years, and the defendant shall be ordered to pay a fine of
 1019  $100,000.
 1020         c. Is 7 grams or more, such person shall be sentenced to a
 1021  mandatory minimum term of imprisonment of 15 calendar years and
 1022  pay a fine of $500,000.
 1023         2. Any person who knowingly manufactures or brings into
 1024  this state 7 grams or more of lysergic acid diethylamide (LSD)
 1025  as described in s. 893.03(1)(c), or any mixture containing
 1026  lysergic acid diethylamide (LSD), and who knows that the
 1027  probable result of such manufacture or importation would be the
 1028  death of any person commits capital manufacture or importation
 1029  of lysergic acid diethylamide (LSD), a capital felony punishable
 1030  as provided in ss. 775.082 and 921.142. Any person sentenced for
 1031  a capital felony under this paragraph shall also be sentenced to
 1032  pay the maximum fine provided under subparagraph 1.
 1033         Section 7. The amendments made by this act to ss. 775.082,
 1034  782.04, 921.141, and 921.142, Florida Statutes, shall apply only
 1035  to criminal acts that occur on or after the effective date of
 1036  this act.
 1037         Section 8. This act shall take effect upon becoming a law.

 

 

 

In Texas not too long ago, Charles Dean Hood lost his appeal for a new trial to the highest state court even though he had evidence that his defense counsel was unaware that at the time of Hood’s criminal trial the judge presiding over that case, Judge Verna Sue Holland, was having an affair with the prosecutor in that trial, Thomas S. O’Connell, Jr.

Read details about it here, at the exceptional Texas blog, Grits for Breakfast.

The Texas Court of Criminal Appeals, where Judge Holland later presided, ruled that Mr. Hood should have raised the issue in his initial appeal and even though the lower court had ruled he deserved a new trial, the Texas Court of Criminal Appeals nixed it. 

Now, in Florida, there’s a similar situation.  Florida Judge Ana Gardiner communicated with the prosecutor in a 2007 capital case while the death penalty trial of Omar Loureiro was ongoing, and the defense counsel wasn’t aware this was happening. 

Gardiner resigned as judge in 2010 so the Judicial Misconduct complaint filed against her went nowhere.  Right now, she’s dealing with the Florida Bar Association’s disciplinary proceedings and last week, there was a two day inquiry (see the video feed provided by the Sun Sentinel online). 

Seems that the trial judge and the prosecutor in the Florida case are not portraying their relationship as a love affair, but instead a close friendship where each was supporting the other through difficult times.  This involved 949 phone calls and 471 text messages over the course of the death penalty trial. 

The Florida Bar Report on the prosecutor recommended a suspension – we’ll know soon enough what will happen to Judge Gardiner.