author: PER CURIAM. CANADY, J., PERRY, Senior Justice,

text:
    Paul DUROUSSEAU, Appellant, v. STATE of Florida, Appellee.
    No. SC15-1276
    Supreme Court of Florida.
    [January 31, 2017]

      Richard Adam Sichta of The Sichta Firm, LLC, Jacksonville, Florida; and Billy Horatio Ñolas, Chief, Capital Habeas Unit, Office of the Federal Public Defender, Tallahassee, Florida, for Appellant
    Pamela Jo Bondi, Attorney General, Ca-rine L. Mitz, Assistant Attorney General, and Robert James Morris, III, Assistant Attorney General, Tallahassee, Florida, for Appellee
   PER CURIAM.

Paul Durousseau appeals an order of the Fourth Judicial Circuit Court denying his motion to vacate his conviction of first-degree murder and sentence of death, filed pursuant to Florida Rule of Criminal Procedure 3.851. We have jurisdiction. See art. V, § 3(b)(1), Fla. Const. For the reasons discussed below, we affirm the circuit court’s denial of postconviction relief but vacate Durousseau’s sentences and remand for resentencing in light of Hurst v. Florida, — U.S. -, 136 S.Ct. 616, 193 L.Ed.2d 504 (2016), as interpreted by Hurst v. State (Hurst), 202 So.3d 40 (Fla. 2016).

STATEMENT OF FACTS

We discussed the facts of this case in our opinion on direct appeal. See Durousseau v. State, 55 So.3d 543, 548-50 (Fla. 2010). Paul Durousseau was sentenced to death for the murder of Tyresa Mack. In 1999, Mack’s sister and stepfather found Mack’s body in her apartment. She was naked from the waist down, and a white cord was wrapped around her neck. Du-rousseau’s DNA was found inside Mack’s vagina. In 2003, Durousseau was indicted on five counts of first-degree murder for the deaths of five women. The similar methodology of the crimes caused investigators to conclude that Mack was one of Durousseau’s victims. Durousseau was arrested for Mack’s murder.

In 2007, Durousseau was found guilty of the first-degree murder of Mack. After the penalty phase, the jury voted ten to two to impose a death sentence. The trial court found four aggravating factors: (1) Du-rousseau was previously convicted of a felony involving the use or threat of violence; (2) the murder was committed while the defendant was engaged in the commission of a robbery or sexual battery; (3) the murder was committed for pecuniary gain; and (4) the murder was especially heinous, atrocious, or cruel. The frial court did not find any statutory mitigating circumstances, but it did find sixteen nonstatuto-ry mitigating circumstances. Ultimately, the trial court sentenced, Durousseau to death. Id at 550. On December 9, 2010, this Court rejected all of Duropsseau’s claims on direct appeal. Id. at 564, cert. denied, 132 S.Ct. 149 (2011).

On October 1, 2012⅛ Durousseau filed a motion for postconviction relief in the circuit court. Durousseau raised two claims in his postconviction motion: (1) that counsel was ineffective for failing to 'request áddi-tional physical and psychiatric testing; and (2) that counsel was ineffective for failing to conduct a meaningful voir dire. However, before the evidentiary hearing, Durous-seau abandoned his first claim. On April 9, 2015, the postconviction court began an evidentiary hearing that lasted two days. Ultimately, the postconviction court denied Durousseau’s claim that counsel had failed to secure additional physical and mental testing. Durousseau appealed to this Court, arguing that trial counsel was ineffective because she failed to conduct meaningful voir dire. While his appeal was pending in this Court, the United States Supreme Court decided Hurst v. Florida, — U.S. -, 136 S.Ct. 616, 193 L.Ed.2d 504 (2016), holding that Florida’s death penalty sentencing statute violated the Sixth Amendment. In light of Hurst v. Florida, Durousseau filed supplemental briefing, arguing that his death sentence should be vacated.

ANALYSIS

Durousseau alleges that (1) his counsel was ineffective during voir dire, and (2) his death sentence violates Hurst v. Florida. We first reject Durousseau’s claim that his trial counsel, Ann Finnell, was ineffective during voir dire. We then hold that Du-rousseau’s death sentence is unconstitutional under Hurst v. Florida.

Ineffective Assistance of Counsel

First, Durousseau argues that Finnell was ineffective for asking more collective questions than individual questions. Second, Durousseau argues that the posteon-viction court erred in finding that Finnell was not ineffective for failing to inquire further of, and move to strike, two specific jurors and one alternate juror. We reject both arguments.

In accordance with Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), we review claims of ineffective assistance of counsel as follows:

First, the claimant must identify particular acts or omissions of the lawyer that are shown to be outside the broad range of reasonably competent performance under prevailing professional standards. Second, the clear, substantial deficiency shown must further be demonstrated to have so affected the fairness and reliability of the proceeding that confidence in the outcome is undermined.

Long v. State, 118 So.3d 798, 805 (Fla. 2013) (quoting Bolin v. State, 41 So.3d 151, 155 (Fla. 2010)). Additionally,

[t]here is a strong presumption that trial counsel’s performance was not deficient. See Strickland, 466 U.S. at 690, 104 S.Ct. 2052. “A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time.” Id. at 689,104 S.Ct. 2052. The defendant carries the burden to “overcome the presumption that, under the circumstances, the challenged action ‘might be considered sound trial strategy.’ ” Id. (quoting Michel v. Louisiana, 350 U.S. 91, 101, 76 S.Ct. 158, 100 L.Ed. 83 (1955)). “Judicial scrutiny of counsel’s performance must be highly deferential.” Id. “[S]trategic decisions do not constitute ineffective assistance of counsel if alternative courses have been considered and rejected and counsel’s decision was reasonable under the norms of professional conduct.” Occhicone v. State, 768 So.2d 1037, 1048 (Fla. 2000). Furthermore, where this Court previously has rejected a substantive claim on the merits, counsel cannot be deemed ineffective for failing to make a meritless argument. Melendez v. State, 612 So.2d 1366, 1369 (Fla. 1992).
In demonstrating prejudice, the defendant must show a reasonable probability that “but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 694, 104 S.Ct. 2052.

Long, 118 So.3d at 805-06 (parallel citations omitted).

Because both prongs of the Strickland test present mixed questions of law and fact, this Court employs a mixed standard of review, deferring to the circuit court’s factual findings that are supported by competent, substantial evidence, but reviewing the circuit court’s legal conclusions de novo.

Shellito v. State, 121 So.3d 445, 451 (Fla. 2013) (citing Mungin v. State, 79 So.3d 726, 737 (Fla. 2011); Sochor v. State, 883 So.2d 766, 771-72 (Fla. 2004)).

With respect to claims that counsel was ineffective during voir dire, the “[e]ffeetive assistance of trial counsel includes a proficient attempt to empanel a competent and impartial jury through the proper utilization of voir dire, challenges to venire members for cause, and the proper employment of peremptory challenges to venire members.” Nelson v. State, 73 So.3d 77, 85 (Fla. 2011). The test for competency and impartiality is whether a juror is capable of placing any bias aside and is willing to render a verdict recommendation based exclusively on the evidence and instruction of law presented at trial. Id.

In reviewing an attorney’s performance, we must be highly deferential and make every effort to “eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time.” Strickland, 466 U.S. at 689, 104 S.Ct. 2052. In light of the challenges in evaluating counsel’s performance, we must “indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.” Id. If the defendant fails to make a showing of one Strickland prong, it is not. necessary to analyze whether the defendant satisfies the other prong. Id. at 691-692, 104 S.Ct. 2052.

To establish deficiency, a defendant must first specifically identify acts or omissions of counsel that were manifestly outside the wide range of reasonably competent performance under prevailing professional norms. Lynch v. State, 2 So.3d 47, 56-57 (Fla. 2008). Counsel will not be deemed deficient where her actions constituted a strategy within the bounds of professional norms. Occhicone, 768 So.2d at 1048 (concluding it was a reasonable strategy to not present additional evidence at trial to ensure the defendant would have the first and last word during closing argument). “The issue is not what present counsel or this Court might now view as the best strategy, but rather whether the strategy was within the broad range of discretion afforded to counsel actually responsible for the defense.” Id. at 1049.

First, Durousseau argues that Finnell was ineffective for asking more collective questions than individual questions that would have led to an informed method of exercising juror challenges. We affirm the postconviction court’s finding that Finnell’s collective questioning did not prejudice Durousseau.

. Durousseau suggests that he may have been prejudiced by trial counsel’s failure to ask individual questions of the venire members or by counsel’s failure to follow up with additional questions. Specifically, Durousseau - hypothesizes that Finnell lacked a complete understanding of the jury ,in light of her failure- to ask more individual questions. Durousseau likewise hypothesizes that as a consequence, Fin-nell’s jury strikes were based on incomplete information. We have previously rejected ineffective assistance claims like these.

To show prejudice, [the defendant] argues' that [his trial counsel] could possibly have learned more about the jurors’ views and used his peremptory challenges in a different manner to obtain a more defense-friendly jury. Such speculation fails to rise to the level of ineffective assistance under Strickland.

Johnson v. State, 921 So.2d 490, 503-04 (Fla. 2005) (footnote omitted). We have likewise rejected “allegations] that if counsel had ‘followed up’ during voir dire with more specific questions, there.would have- been a basis for a for-cause challenge” as “mere conjecture.” Reaves v. State, 826 So.2d 932, 939 (Fla. 2002); see also Wade v. State, 156 So.3d 1004, 1033 (Fla. 2014) (“Wade’s claim that ‘there would have been a basis for a for cause challenge if counsel had followed up during voir dire with more specific questions is speculative.’ ” (quoting Green v. State, 975 So.2d 1090, 1105 (Fla. 2008))).

'Durousseau’s arguments are 'likewise conjectural and speculative. Durousseau asserts that Finnell’s failure to ask sufficient individual questions precluded her from obtaining the information necessary to make intelligent use of juror challenges. Durousseau does not identify what information individual questioning would have revealed, nor how that information could have changed his jury make-up or lead to a different result. Accordingly, we affirm the postconviction court’s finding that Durous-seau did not suffer any prejudice.

Second, Durousseau argues that the postconviction court erred in finding that Finnell was not ineffective for failing to exhaust all of her peremptory challenges, failing to request additional challenges, and failing to challenge the jury panel. We again affirm the postconviction court’s findings in denying these claims.

The postconviction court found that Du-rousseau did not identify any prospective juror that would have been better qualified to sit on the jury than the jury eventually seated. Durousseau’s argument on appeal contains the same defect. We have held that this defect is fatal to this type of claim of ineffective assistance of counsel. See, e.g., Peterson v. State, 154 So.3d 275, 282 (Fla. 2014) (“Peterson does not point to any particular venire member [who] would have been better qualified to serve in place of a seated juror.”). Accordingly, we affirm the postconviction court’s finding.

Durousseau also specifically argues that Finnell should have further inquired into three of the potential jurors: (1) alternate juror Markley, (2) juror Norrie, and (3) juror Cummins. The postconviction court rejected Durousseau’s ineffective assistance of counsel claims regarding Finnell’s questioning and challenging of these jurors. We likewise affirm the postconviction court’s findings with regard to these three jurors.

As to juror Markley, the postcon-viction court found that Finnell’s actions did not prejudice Durousseau because juror Markley was an alternate juror and never deliberated in Durousseau’s trial. We agree. Assuming that further questioning would have revealed information demonstrating, for instance, juror Markley’s bias against Durousseau, “prejudice can be shown only where one who was actually biased against the defendant , sat as a juror.” Carratelli v. State, 961 So.2d 312, 324 (Fla. 2007) (emphasis added); see also Dillbeck v. State, 964 So.2d 95, 102 (Fla. 2007) (upholding a postconviction court’s finding, which stated, “Two of the complained of jurors were alternates only who did not participate in the jury’s verdict. Dillbeck cannot show prejudice based on alternate jurors [who] never served.”) Because juror Markley served only as an alternate juror, we affirm the postconviction court’s finding.

As to jurors Norrie and Cum-mins—who served on Durousseau’s jury and deliberated as to his guilt and punishment—we likewise affirm the postconviction court’s findings that Finnell was not deficient for her allegedly insufficient questioning of these two jurors. Durous-seau does not identify the particular information that further questioning of these two jurors would have revealed, and so cannot demonstrate that this undiscovered information would have produced grounds to disqualify either juror. As we earlier noted, a postconviction movant cannot demonstrate counsel’s ineffectiveness with speculative assertions that further questioning of a juror during voir dire could have developed more information that may have disqualified the juror. See Wade, 156 So.3d at 1033; Green, 975 So.2d at 1105; Johnson, 921 So.2d at 503-04; Reaves, 826 So.2d at 939.

Durousseau also argues that Finnell was ineffective for failing to strike alternate juror Markley and jurors Norrie and Cummins from the jury. The postcon-viction court also rejected this claim, and we affirm. A postconviction movant “must demonstrate that [a particular juror] was actually biased, not .merely that there was doubt about [the juror’s] impartiality.” Owen v. State, 986 So.2d 534, 550 (Fla. 2008). Durousseau does not allege that any of the three were actually biased and thus prejudiced Durousseau at trial. Rather, Durousseau -merely raises the possibility that alternate juror Markley and jurors Norrie and Cummins-might have deserved a for-cause challenge, and counsel was ineffective for failing to strike these potentially problematic jurors. Accordingly, we affirm the postconviction court’s rejection of this claim. Id,

Durousseau also argues that we should not apply the “actual bias” standard in this case because Finnell’s failure to better inquire of jurors is responsible for Durousseau’s inability to point to specific information about juror bias. We reject this contention because it is the postconviction movant’s responsibility to demonstrate juror bias, irrespective of the alleged failures of trial counsel. See, e.g., Boyd v. State, 200 So.3d 685, 699 (Fla. 2015). Once the postconviction movant identifies the juror’s bias, the movant must identify the manner in which trial counsel was deficient by failing to uncover information during voir dire that would have demonstrated the bias. See id. Accordingly, we reject Durousseau’s argument and determine that we appropriately apply the “actual bias” standard in this case.

Durousseau has failed to demonstrate that his counsel was ineffective during voir dire. Accordingly, we reject his ineffective assistance of counsel claims.

Hurst v. Florida & Hurst In Hurst v. Florida, the United States Supreme Court held that Florida’s capital sentencing scheme is unconstitutional because “[t]he Sixth Amendment requires a jury, not a judge, to find each fact necessary to impose a sentence of death. A jury’s mere recommendation is not enough.” 136 S.Ct. at 619. Durousseau’s death sentence was imposed under an unconstitutional capital sentencing statute. Hurst v. Florida and Hurst apply retroactively to Durousseau, whose sentence became final in 2010. See Mosley v. State, 41 Fla. L. Weekly S629, 209 So.3d 1248, 2016 WL 7406506 (Fla. Dec. 22, 2016). The remaining question is whether the Hurst error was harmless beyond a reasonable doubt.

A Hurst error is capable of harmless error review. See Hurst, 202 So.3d at 67. Here we determine that the Hurst error during Durousseau’s penalty phase proceeding was not harmless beyond a reasonable doubt. As this Court explained in Hurst:

The harmless error test, as set forth in Chapman [v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967),] and progeny, places the burden on the state, as the beneficiary of the error, to prove beyond a reasonable doubt that the error complained of did not contribute to the verdict or, alternatively stated, that there is no reasonable possibility that the error contributed to the conviction.

Hurst, 202 So.3d at 68 (quoting State v. DiGuilio, 491 So.2d 1129, 1138 (Fla. 1986)). The Court further discussed the lens through which harmless error should be evaluated:

Where the error concerns sentencing, the error is harmless only if there is no reasonable possibility that the error contributed to the sentence. See, e.g., Zack v. State, 753 So.2d 9, 20 (Fla. 2000). Although the harmless error test applies to both constitutional errors and errors not based on constitutional grounds, “the harmless error test is to be rigorously applied,” DiGuilio, 491 So.2d at 1137, and the State bears an extremely heavy burden in cases involving constitutional error. Therefore, in the context of a Hurst v. Florida error, the burden is on the State, as the beneficiary of the error, to prove beyond a reasonable doubt that the jury’s failure to unanimously find all the facts necessary for imposition of the death penalty did not contribute to Hurst’s death sentence in this case. We reiterate:
The test is not a sufficiency-of-the-evidence, a correct result, a not clearly wrong, a substantial evidence, a more probable than not, a clear and convincing, or even an overwhelming evidence test. Harmless error is not a device for the appellate court to substitute itself for the trier-of-fact by simply weighing the evidence. The focus is on the effect of the error on the trier-of-fact.
DiGuilio, 491 So.2d at 1139. “The question is whether there is a reasonable possibility that the error affected the [sentence].” Id.

Hurst, 202 So.3d at 68 (alteration in original). Regarding the right to a jury trial, it must be clear beyond a reasonable doubt that a rational jury would have unanimously found that there were sufficient aggravating factors and that the aggravating factors outweighed the mitigating circumstances. See id. at 44.

In the present case, the jury did not make any of the requisite factual findings beyond a reasonable doubt. Rather, the jury only issued a recommendation of death by a vote of ten to two. Further, although the aggravating circumstance of a prior violent felony was found unanimously by virtue of Durousseau’s previous murder convictions, whether this aggravating circumstance was sufficient to impose death requires a unanimous jury determination. Hurst, 202 So.3d at 44. Moreover, there is no way of knowing if the jury found any of the other three aggravating circumstances unanimously or, if any ag-gravators were unanimously found, whether the jury also unanimously found those aggravators sufficient to qualify for a death sentence. Further, we cannot conclude that the two jurors who voted to recommend life found that the aggravation outweighed the mitigation.

Accordingly, we conclude that the Hurst violation was not harmless, and Durous-seau is entitled to a new penalty phase. As we have done for other capital defendants, we reject Durousseau’s argument that section 775.082(2), Florida Statutes (2015), entitled him to be resentenced to life imprisonment. See Hurst, 202 So.3d at 44, 63-66.

CONCLUSION

Because Durousseau’s death sentence was imposed in violation of the Sixth Amendment right to a jury determination of every critical finding necessary for the imposition of the death sentence and Florida’s independent right to jury trial, and because we conclude that the Hurst error is not harmless beyond a reasonable doubt, we vacate Durousseau’s death sentence and remand for a new penalty phase.

It is so ordered.

LABARGA, C.J., and PARIENTE, LEWIS, and QUINCE, JJ., concur.

CANADY, J., concurs in part and dissents in part with an opinion, in which POLSTON, J., concurs.

PERRY, Senior Justice, concurs in part and dissents in part with an opinion.

CANADY, J.,

concurring in part and dissenting in part.

I concur with the decision to affirm the denial of relief regarding Durousseau’s conviction. But I dissent from the decision to require a new penalty phase. As I have previously explained, Hurst v. Florida, — U.S. -, 136 S.Ct. 616, 193 L.Ed.2d 504 (2016), should not be given retroactive effect. See Mosley v. State, 209 So.3d 1248, 2016 WL 7406506 (Fla. Dec. 22, 2016) (Canady, J., concurring in part and dissenting in part).

POLSTON, J., concurs.

PERRY, Senior Justice,

concurring in part and dissenting in part.

I concur with the majority’s decision to affirm the postconviction court’s denial of relief as it pertains to Durousseau’s convictions and determination that the Sixth Amendment requires that we vacate Du-rousseau’s death sentence. However, because Florida law requires that Durous-seau be sentenced to life in prison as a consequence of his unconstitutional death sentence, I disagree with the majority’s decision to remand for a new penalty phase proceeding instead of remanding for imposition of a life sentence. See § 775.082(2), Fla. Stat. (2016).

As I explained fully in Hurst v. State, 202 So.3d 40, 75-76 (Fla. 2016) (Perry, J., concurring in part and dissenting in part), there is no compelling reason for this Court not to apply the plain language of section 775.082(2), Florida Statutes. Because the majority of this Court has determined that Durousseau’s death sentence was unconstitutionally imposed, Durous-seau is entitled to the clear and unambiguous statutory remedy that the Legislature has specified:

In the event the death penalty in a capital felony is held to be unconstitutional by the Florida' Supreme Court or the United States Supreme Court, the court having jurisdiction over a person previously sentenced to death for a capital felony shall cause such person to be brought before the court, and the court shall sentence such person to life imprisonment as provided in subsection (1).

See § 775.082(2), Fla. Stat. (emphasis added). The plain language of the statute does not rely on a specific amendment to the United States Constitution, nor does it refer to a specific decision by this Court or the United States Supreme Court. Further, it does not contemplate that all forms of the death penalty in all cases must be found unconstitutional. Instead, the statute uses singular articles to describe the circumstances by which the statute is triggered. Indeed, the statute repeatedly references a singular defendant being brought before a court for sentencing to life imprisonment. I consequently cannot agree that the statute was intended as a fail-safe mechanism for when this Court or the United States Supreme Court declared that the death penalty was categorically unconstitutional. Cf. Hurst v. State, 202 So.3d at 40 (Perry, J., concurring in part and dissenting in part).

      . The trial court found the following sixteen nonstatutory mitigators: (1) Durousseau was raised in a broken home (little weight); (2) Durousseau was raised without the benefit of his natural father and lost the love and support of his stepfather at an early age (little weight); (3) Durousseau grew up in poverty and came from a deprived background (little weight); (4) Durousseau was raised in a violent neighborhood and was exposed to violence and the threat of violence to his person on a daily basis (little weight); (5) Durous-seau personally witnessed his stepfather physically abuse his mother (moderate weight); (6) Durousseau was beaten as a means of discipline as a child (little weight); (7) Du-rousseau worked continuously through his adult life (little to moderate weight); (8) Du-rousseau enlisted and served in the United States Army for approximately six years (moderate weight); (9) Durousseau has supported his two children and is a loving and caring father (little weight); (10) Durousseau has been a loving, respectful son to his mother and cared for her during several periods of illness and incapacitation (moderate weight); (11) Durousseau has been a good brother to his siblings and to other family members, helping to care for and watch over his cousins (moderate to significant weight); (12) .Du-rousseau saved his cousin’s life and his brother’s life (moderate weight); (13) Durousseau has the support of family and friends who continue to lov.e him (little weight);- (14) Du-rousseau has alcohol abuse issues on both the maternal and paternal sides of his family; despite this, Durousseau has never abused alcohol or illicit drugs (very little weight); (15) society can be protected by a. life sentence without parole (very little weight); (16) Durousseau has exhibited good behavior during the trial of this cause (little weight). '■'’ ! 1

      . Durousseau raised the following cláims on direct appeal: (1) the trial-court erred.- in admitting Williams rule evidence of the two other murders; (2) the trial court erred in denying Durousseau's motion for judgment óf acquittal of felony murder' with robbery as the underlying .offense- and.that the evidence is legally insufficient ,to support the pecuniary gain aggravator; (3) the trial court erred in rejecting an ’ expert’s opinion testimony regarding mental mitigation in favor of "conflicting lay testimony; (4) the evidence- was insufficient to support a first-degree murder conviction; and (5) the trial court erred in denying Durousseau's motion to declare Florida’s capital sentencing scheme unconstitutional under Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002). Durousseau, 55 So.3d at 550.

      . In light of our decision that Hurst v. Florida requires us to vacate Durousseau’s death sentence, we decline to address Durousseau's argument that Finnell was ineffective because she failed to adequately inquire of the venire members about their attitudes toward aggravating and mitigating factors affecting the imposition of the death penalty and did not sufficiently question the voir dire with the specific aggravators and mitigators that applied to Durousseau.


source: Caselaw Access Project

author: PER CURIAM. POLSTON, J.,

license: Public Domain

text:
    Matthew Lee CAYLOR, Appellant, v. STATE of Florida, Appellee. Matthew Lee Caylor, Petitioner, v. Julie L. Jones, etc., Respondent.
    No. SC15-1823
    No. SC16-399
    Supreme Court of Florida.
    [May 18, 2017]

      Michael P. Reiter, Ocala, Florida, for Appellant/Petitioner
    Pamela Jo Bondi, Attorney General, Tallahassee, Florida; and Marilyn Muir Bec-cue, Assistant Attorney General, Tampa, Florida, for Appellee/Respondent
   PER CURIAM.

Matthew Lee Caylor appeals an order of the circuit court denying his motion. to vacate his conviction of first-degree murder and sentence of death filed under, Florida Rule of Criminal Procedure 3.851 and petitions this Court for a-writ of habeas corpus. We have jurisdiction, See art, V, § 3(b)(1), (9), Fla. Const. For the reasons stated below, we grant. Caylor’s petition for a writ of habeas corpus, vacate Caylor’s death sentence, and remand for...a new penalty phase. We affirm, however, the trial court’s denial of postconviction relief.

FACTS AND PROCEDURAL HISTORY

Following a jury trial, Matthew Caylor was convicted of first-degree murder, sexual battery involving great physical force, and aggravated child abuse for the- 2008 murder of Melinda Hinson. Caylor v. State, 78 So.3d 482, 486 (Fla. 2011). The jury recommended death by a vote of eight to four, which the trial court followed in its sentencing order. Id. This Court set forth the following facts on direct appeal:

In July 2008, Melinda Hinson was living with her mother, her mother’s boyfriend, her fifteen-year-old brother, and Daryl Lawton, a family friend, in a single room at the Valu-Lodge Motel in Panama City. The family had moved to Florida from Kentucky in December 2007 and Lawton came to live with the family soon after. Due to strained finances, all five moved to the motel in mid-June. The room was crowded and the children did not have school during the summer, so Melinda would spend most of her time by the motel’s pool. Melinda would also walk two dogs belonging to Scott Heinze and Tyler Nichols, who also lived at the motel, while Heinze and Nichols were at work.
According to the motel’s records, Matthew Caylor checked into the motel on June 25, 2008. At trial, Lawton testified that prior to the date of Melinda’s disappearance, he had only spoken with Cay-lor a few times and that he had never seen Melinda or her brother speak with Caylor. However, at around noon on July 8, Caylor came to Lawton and asked to borrow some duct tape, which Lawton took to Caylor’s room. Later in the day, Caylor called Lawton and asked if he could also borrow a steak knife. Again, Lawton went to Caylor’s room to take him the item. Lawton recalled that Melinda and her brother accompanied him on one of these occasions, but said that they did not speak to Caylor.
Melinda was last seen alive shortly after 5 p.m. on July 8, when she returned Heinze and Nichols’ dogs to their room after taking the dogs for a walk. When Melinda did not return to her family’s room, the family first asked Heinze and Nichols whether they had seen her. Heinze told the family that he had last seen Melinda when she returned the dogs to their room. The family then searched the motel and the surrounding area. When they could not find Melinda, they called the police and reported that the girl was missing.
Melinda’s body was discovered on the morning of July 10, hidden under a bed in a room two doors down from Heinze and Nichols’ room. The body was found naked and lying face-down. The discovery was made by a housekeeper who was following the motel’s requirement of checking under the beds for trash. Although the room had been cleaned the previous day, the first housekeeper to clean the room testified that she did not look under the bed that day because her back was hurting. A review of the motel’s records revealed that Matthew Cay-lor had been renting the room on the day of Melinda’s disappearance. Officers of the Panama City Police Department subsequently learned that Caylor had been arrested in connection with a different criminal matter and that he was already in the custody of the Bay County Sheriffs Department.
Detective Mark Smith of the Panama City Police Department testified at trial that he interviewed Caylor after the body was discovered. He was accompanied by Investigator Mike Wesley of the Bay County Sheriffs Department, who had interrogated Caylor following the initial arrest. When Smith and Wesley went to see Caylor, Caylor said that he was glad to see the officers because he wanted to talk to them. The officers read Caylor his Miranda [v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966),] rights, which he waived. In the interrogation that followed, Caylor confessed to the murder of Melinda Hinson and described the circumstances leading up to the crime. Based on Caylor’s statements and evidence recovered from the crime scene, Caylor was charged with first-degree murder (based on both premeditation and felony murder theories of the offense), see § 782.04(1)(a) 1.-2., Fla. Stat. (2008), sexual battery involving great physical force, see § 794.011(3), Fla. Stat. (2008), and aggravated child abuse, see § 827.03(2), Fla. Stat. (2008).
In statements made initially to the police officers and later to the trial court, Caylor gave the following account of the murder and the events leading up to it. In the summer of 2008, Caylor was on felony probation in the State of Georgia based on an incident that had occurred several years before in which he was accused of molesting the fourteen-year-old daughter of a neighbor. Caylor asserted that he was falsely accused, but said that on his attorney’s advice he pled guilty to avoid a possible prison sentence. He was later required to register as a sex offender after violating the terms of his probation by being convicted of possession of cocaine. Caylor stated that after several years he became frustrated with the restrictions placed on him as a sex offender, and said that he told his probation officer that he would rather serve time in jail and be done with the sentence. Caylor said that he then went to Panama City to relax because he thought he would have to spend approximately a year and a half in jail. Caylor admitted that he had not been given permission by his probation officer to leave Georgia, even though he knew he was required to receive such permission by Georgia law.
Caylor decided to rent a room at the Yalu-Lodge Motel because it was close to the beach. While in Panama City, Caylor began selling cocaine and methamphetamine. He said that he also became friends with “two Russian girls,” and that he became romantically involved with one of the girls, Marina. He said that he discovered on July 8 that the women had stolen some of his drugs. Caylor said that he borrowed a knife and duct tape with the intent of using it to threaten them to get his drugs back. He subsequently went to the women’s apartment, taking the knife and duct tape with him. Caylor said that he became violent during that encounter and decided to go back to his room at the motel. He was later arrested for the incident at the apartment.
During his interrogation, Caylor told Smith and Wesley that he returned to his motel room immediately after the incident at the women’s apartment. He said that he had been back in his room for only a few minutes when Melinda Hinson knocked on his door and asked him for a cigarette. He told the officers that at the time Melinda came to his room, he felt that he had “been through all of this because of something I didn’t do,” and told the officers that he decided he was “going to make it worth it.” When asked during the Spencer hearing what he meant by these statements, Caylor responded that he meant he was angry about his prior conviction for child molestation. He told the trial court he felt that “[i]f I’m going to be in trouble for having sex with this girl being in my room, I might as well have sex with this girl.”
After Melinda entered the room, Cay-lor said that she sat down on the bed and that they began smoking. He asked her what she had been doing. Melinda replied that she had just finished walking a dog that belonged to the men in the next room. Caylor asked how old she was and she told him that she was thirteen. He said that he asked her why she hung out with the guys next door. Melin■da responded that “they think they’re hot stuff’ but said that she “[did]n’t really like them.” According to Caylor, Melinda.then told him that she thought he was “hot,” moved close to him on the bed and put: her arm-around him. Caylor said that they started kissing, that he took her clothes off, and that they started having sex.
Caylor said that at some point he “just started choking her.” He claimed that they had stopped having sex just before he began to strangle her. He said that he “wasn’t into it” and that the . intercourse lasted for only thirty .to forty-five seconds. However, he said that they were still naked when he began to strangle her and that he was still on top of her. Caylor said that when he began to choke Melinda, “she was flipping out and I just wanted her to go away.” He , said that she began fighting him and ■ saying, “[L]et me ask you a question, let me ask you a question,” and that during , the struggle they fell from the bed to the floor. Caylor told the officers that he then unplugged the phone cord from the wall and wrapped it around her neck. . .The officers asked whether Melinda was moving when he began to strangle her *.with. the cord, and Caylor, responded: ! “Well» yeah, it was like no, no,” When he ■thought Melinda was dead, he released her and plugged the phone cord back . into the wall. He then lifted up the mattress and placed Melinda and her clothes under the bed. He said that he gathered his things and left the room.
Detective Smith asked Caylor why he decided to kill Melinda:
. [Detective Smith:] Well, is your thoughts that now I’ve had sex with her she’s going to tell? Is that what led to that she has to die?
[Caylor:] No, it wasn’t like that, no, it wasn’t like that, it was just like, it was like, more or less like you’re the fucking reason why I’m in this situation I’m in now because I did the right thing. I think it was more of a hate, like a hate, like I was really angry, I think is what it was.
[Detective Smith:] A hate for her or a hate the fact [sic] that she’s 13 years old.
[Caylor:] That she was 13 coming on to me.
Caylor said that when Melinda came into his room, he was “all pissed off about everything that has happened, not to mention the fact of what just happened at Marina’s house.” He said that Melinda “just kind of walked up at the wrong, with, you know, with that same bull shit, man, at the wrong time.”
At trial, the State called several witnesses to describe physical evidence recovered from the crime scene. Brenda Pelfrey, a crime scene investigator, identified photographs of the motel room where the body was discovered. She stated that the victim’s clothes, which were found underneath the body, were not ripped or torn and that there was no blood on the victim’s underwear. Pelfrey was also present during, the autopsy, where she collected a sexual assault kit. Trevor Seifert, a crime lab analyst, testified that he found Melinda’s DNA on portions of the phone cord, removed from the motel room, and that Caylor was a possible contributor to scrapings taken from under Melinda’s fingernails. Seifert also stated that vaginal swabs from the victim tested positive for blood and semen, and that Caylor’s DNA profile matched these samples.
The jury also heard testimony from Dr. Michael Hunter, the medical examiner who conducted the autopsy. Dr. Hunter stated that during the examination he observed considerable injuries to the victim’s neck. He found that some of these injuries were consistent with strangulation by hand, while other straight-line markings showed strangulation by ligature. He agreed that the latter markings could have been inflicted through the use of a telephone cord. Dr. Hunter noted that there were multiple straight-line abrasions, which indicated application and reapplication of the ligature. He determined that these markings were most likely inflicted while the victim was still alive. He also observed bleeding in the victim’s eyes, which provided further evidence of strangulation. Dr. Hunter ultimately concluded that the cause of death was strangulation. He said that the victim would have been in pain while she was conscious, and noted that there was no evidence of any head trauma that might have impaired her ability to feel pain or made her unaware of what was happening around her.
In addition to evidence of strangulation, Dr. Hunter observed other injuries on the body, including a bruise on the victim’s arm, a small abrasion on her left ankle, and another large bruise that extended over the length of the left side of her clavicle. He said that there was considerable bleeding underneath the clavicle bruise. Additionally, Dr. Hunter observed discoloration in the victim’s pubic area, although he said that this injury could have occurred during consensual sex. He noted that the victim was menstruating at the time of death, but found no indication as to whether she was sexually active. He said that the victim’s blood tested positive for nicotine but negative for drugs or alcohol.
After the jury convicted Caylor of all three charged offenses, a penalty proceeding was held. The State’s only witness at this proceeding was Thomas Shakitra, who testified that he was employed as a. probation officer with the State of Georgia. Shakitra stated that in 2008, he was supervising Caylor, who was on felony probation. Following this testimony, the defense stipulated that Caylor had a prior felony conviction in Georgia.
The defense called four witnesses during the penalty phase. The appellant’s parents, Kimberly and Kerry Caylor, testified that they were both addicted to amphetamines while the appellant was a child and that for a time the family had no money and lived in a trailer with no power. Both parents testified that the appellant had an abusive relationship with his father, began abusing drugs at a young age, and suffered from emotional problems. A third defense witness testified that he worked with the appellant as a mechanic in Jasper, Georgia, and described the appellant’s drug problems. The final defense witness was a veterinarian who testified that Matthew Caylor had worked in the kennel area of his office for several months. He stated that Caylor was a good employee and treated 'the animals well. At the end of the' proceeding, the jury recommended the death penalty by a vote of eight to four.
The trial court held a Spencer hearing on November 18, 2009. Caylor testified in his own defense and described the events preceding the murder. He said that contrary to his initial statement to the police, he had used a large amount of drugs on the day of the homicide. He stated that he decided to have sex with Melinda because he was angry about the fact that he had been on probation for eight years for an offense he did not commit, and that he was angry because he found himself in a similar situation with a thirteen-year-old girl. He said that he did not rape Melinda and that he was remorseful for killing her.
In its written sentencing order, the trial court found and assigned weight to the following aggravating circumstances: (1) the capital felony was committed by a person previously convicted of a felony and under a sentence of imprisonment or placed on community control or on felony probation (great weight); (2) the capital felony was committed while the defendant was engaged in the commission of sexual battery and aggravated child abuse (great weight); and (3) the capital felony was especially heinous, atrocious, or cruel (“HAC”) (great weight). The court found the following mitigating circumstances: (1) dysfunctional family (little weight); (2) under the influence of an extreme mental or emotional disturbance (some weight); (3) compassionate to animals and good employee (little weight); (4) learning difficulties (very little weight); and (5) remorse (little weight).
The trial court concluded that the nature and quality of the mitigating factors “pale[d] in comparison” to the enormity of the aggravating circumstances. Furthermore, the court determined that the aggravating circumstances clearly and convincingly outweighed the mitigating factors. Based on these determinations, the trial court imposed a sentence of death.

Id. at 486-91, 86 S.Ct. 1602 (footnotes omitted). On appeal, Caylor raised six claims and this Court affirmed the convictions and sentences. Id. at 502, 86 S.Ct. 1602. The United States Supreme Court denied certiorari on May 14, 2012. Caylor v. Florida, — U.S. -, 132 S.Ct. 2405, 182 L.Ed.2d 1042 (2012).

On May 2, 2013, Caylor filed his original postconviction motion. The motion raised six claims. On August 7, 2013 the court conducted a Huff hearing and summarily denied claim 1 (in part) and claim 3 (in part), with the court reserving ruling on whether claim 4 required further eviden-tiary consideration. The court granted an evidentiary hearing on claim 1 (in part), regarding Juror Marianne Moore, claim 2, regarding counsel’s failure to investigate and present mitigation evidence during the penalty phase and claim 3 (in part), regarding counsel’s failure to have a mental health professional testify with respect to Caylor’s mental state during the penalty phase. The remaining claims were to be resolved without an evidentiary hearing. The evidentiary hearing took place on June 1-2, 2015. Following the evidentiary hearing, the court filed a final order denying Caylor’s postconviction motion on September 9, 2015. This appeal followed.

RULE 3.851 MOTION ON APPEAL

Caylor has raised the following five issues on this appeal: (1) trial counsel was ineffective for his investigation and presentation of mitigation evidence at the penalty phase; (2) trial counsel was ineffective for not ensuring that Caylor receive a reasonably competent mental health evaluation for mitigation; (3) the trial court erred in summarily denying Caylor’s claim that counsel was ineffective for faffing to challenge Juror Weaver; (4) the trial court erred in summarily denying the claim that trial counsel was ineffective for failing to ask any of the jurors about their views on mental health, addiction, remorse, rehabilitation, mercy, experts, or any other potential mitigation; and (5) cumulative error. Because we find that Caylor is entitled to a new penalty phase, we only address issue three concerning Juror Weaver. As to this issue, we affirm the trial court’s ruling and its denial of Caylor’s postconviction motion.

Juror Weaver

Caylor argues that the trial court erred in summarily denying that counsel was ineffective for faffing to challenge Juror Weaver. According to Caylor, Juror Weaver indicated that she was not sure if she could be impartial, knew one of the witnesses, and was once the victim of a crime. The postconviction court summarily denied this claim, finding that Caylor failed to show that an actually biased juror sat on the jury panel.

A defendant is entitled to an evi-dentiary hearing on a postconviction motion unless: (1) the motion, files, and records in the case conclusively show that the movant is entitled to no relief, or (2) the motion or particular claim is legally insufficient. Valentine v. State, 98 So.3d 44, 54 (Fla. 2012). A postconviction court’s decision on whether to grant an evidentiary hearing is a pure question of law, reviewed de novo. Mann v. State, 112 So.3d 1158, 1162 (Fla. 2013). For a defendant to show that his trial counsel was ineffective during the jury selection process for failing to remove a juror from the panel, that defendant must show that an actually biased juror sat on his jury. Carratelli v. State, 961 So.2d 312, 324 (Fla. 2007).

In support of his claim, Caylor relies on the following colloquy with Juror Weaver:

THE COURT: No. Have you ever been a victim of crime or the party in a lawsuit?
JUROR WEAVER: I had a wallet stolen.
THE COURT: Okay, would that affect your ability to sit on this case?
JUROR WEAVER: This one might. THE COURT: Pardon?
JUROR WEAVER: This might.
THE COURT: Okay. Do you think because of that, you wouldn’t be able to sit on this case or other reasons?
JUROR WEAVER: I can sit.
THE COURT: Okay. Let’s see. Have you had any experiences with the State Attorney’s office or law enforcement that would influence your decision?
JUROR WEAVER: No, ma’am.
THE COURT: And do you feel that you could be fair and impartial on this case?
JUROR WEAVER: I might.
THE COURT: Pardon?
JUROR WEAVER: I might.
THE COURT: You might. You’re not sure?
JUROR WEAVER: No ma’am.

Caylor also relies on questioning by the State during voir dire that revealed that one of the witnesses, Margaret Davis, was the aunt of Juror Weaver’s two daughters:

JUROR WEAVER: Margaret Davis.
MS. BASFORD: Margaret Davis, yes, ma’am. You know Ms. Davis?
JUROR WEAVER: Yes.
MR. BASFORD: How do you know Ms. Davis?
JUROR WEAVER: The lady who worked at the hotel?
MR. BASFORD: Yes, ma’am.
JUROR WEAVER: She’s my two daughters’ aunt.
MR. BASFORD: Excuse me?
JUROR WEAVER: She’s my two daughters’ aunt.
MR. BASFORD: She’s your two daughters’ aunt?
JUROR WEAVER: Uh huh.
MR. BASFORD: Oh, okay, okay. Well, she is going to be a witness in this case. Now, my question is, usually we don’t have people that are, you know, that closely related. Do you see her that often, ma’am?
JUROR WEAVER: No.
MR. BASFORD: Okay. If she testifies, and well, there’s no if, she is going to testify, Good Lord willing she’s going to testify, could you weigh and evaluate her testimony as you would that of the other witnesses in this case?
JUROR WEAVER: Yes.
MR. BASFORD: The Judge will give you some criteria to judge the witnesses’ testimony. But you could do that? JUROR WEAVER: Yes, sir.

We agree with the postconviction court’s determination and find that the record refutes any claim that an actually biased juror sat on the jury. In regards to Juror Weaver’s comment that she was not sure if she could be impartial, Mr. Basford later rehabilitated her through the following exchange:

MR. BASFORD: All right. I’ve got a question mark down here whether or not you could be impartial. How do you feel about it after sitting here this far in this case?
JUROR WEAVER: I’m in favor of the death penalty.
MR. BASFORD: Okay.
JUROR WEAVER: In some cases.
MR. BASFORD: In some cases you’re in favor of the death penalty. Do you think you can be fair and impartial in this case?
JUROR WEAVER: Yes, sir.

Additionally, Juror Weaver stated that in regard to Margaret Davis, she would weigh and evaluate her testimony as she would the other witnesses. She also stated that she did not see Margaret Davis that often. As evidenced by the record, trial counsel was not ineffective because Juror Weaver clearly indicated that she could be fair and impartial, and there is no evidence that she was actually biased. Consequently, we deny relief as to this claim.

HABEAS PETITION

Caylor raises three claims in his petition for writ of habeas corpus filed with this Court. He contends that (1) section 775.082(2) requires that all death-sentenced capital felons receive life sentences without parole; (2) he is entitled to a new penalty phase under Hurst v. Florida, — U.S. -, 136 S.Ct. 616, 193 L.Ed.2d 504 (2016), because the jury verdict at the sentencing phase was -not unanimous; and (3) appellate counsel provided ineffective assistance of counsel by failing to raise an Ake v. Oklahoma. 470 U.S. 68, 106 S.Ct. 1087, 84 L.Ed.2d 53 (1985), claim on direct appeal. As mentioned previously, we find merit in Caylor’s second claim and grant him a new penalty phase.

Application of Hurst v. Florida

Caylor argues that he is entitled to a new penalty phase under Hurst v. Florida, because the jury verdict at the sentencing phase was not unanimous. During the pendency of Caylor’s case, the United States Supreme Court found Florida’s death penalty scheme unconstitutional. Hurst v. Florida, 136 S.Ct. at 619. We have interpreted Hurst v. Florida to require a jury to unanimously find each aggravating factor, that the aggravating factors are sufficient to warrant death, and that the aggravating factors outweigh the mitigation. See Hurst v. State, 202 So.3d 40, 57-58, 66-69 (Fla. 2016). We have also determined that most defendants sentenced to death after the Ring decision should receive the benefit of Hurst. See Mosley v. State, 209 So.3d 1248 (Fla. 2016). Caylor, whose sentence was final in 2012, is one such defendant.

Because Hurst applies to Caylor, we must consider whether it is clear beyond a reasonable doubt that a rational jury would have unanimously found all the facts necessary for the imposition of death and unanimously recommended death, such that any Hurst error is harmless. See Mosley, 209 So.3d at 1284. In this case, the jury’s recommendations of death were not unanimous and the jury made no findings concerning the aggravating and mitigating circumstances. The jury recommended death for the murder of Melinda Hinson by a vote of eight to four. Therefore, we cannot conclude that the error in Caylor’s penalty phase was harmless beyond a reasonable doubt. Accordingly, Caylor is entitled to a new penalty phase.

Section 775.082(2)

Caylor also, argues that section 775.082(2), Florida Statutes (2016), requires that all death' sentenced capital felons receive life sentences without parole. We previously rejected this claim in Hurst. Hurst, 202 So.3d at 65 (“[W]e conclude that the statute does not- mandate automatic commutation to life sentences after the decision in Hurst v. Florida.”). Therefore, we deny Caylor’s claim1 that' he is entitled to a life sentence under ■ section 775.082(2).

CONCLUSION

For the reasons stated above, wé affirm the1 trial court’s deniaí of’ postconviction relief. However, we grant' Caylor habea:s relief, vacate his death senténce as unconstitutional under Hurst, and remand to the trial court for a new penalty phase.

It is so ordered.

LABARGA, C.J., and PARIENTE, LEWIS, and QUINCE, JL, concur.

POLSTON, J., concurs in part and :- dissents in part with an opinion, in which CANADY and LAWSON, JJ„. concur.

POLSTON, J.,

concurring in part and dissenting in part.

I concur with the majority’s decision except its vacating of the death sentence pursuant to Hurst.

CANADY and LAWSON, JJ., concur.

      . Caylor argued: (1) the trial court erred in denying his motion for judgment of acquittal on the offense of aggravated child abuse; (2) the trial court erred in denying his motion for judgment of acquittal on the offense of sexual battery involving great force; (3) the trial court erred in finding as an aggravating circumstance that he committed the murder while on felony probation; (4) the trial court erred in assigning "little weight” to the "dysfunctional family” and "remorse” mitigating circumstances; (5) death is a disproportionate punishment; (6) Florida's death penalty is unconstitutional under the holding of Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002). Caylor, 78 So.3d at 491.

      . Caylor argued: (1) trial counsel was ineffective during voir dire for failing to challenge jurors, properly inquire of them, and to move to strike the entire panel; (2) trial counsel was ineffective during the penalty phase for failing to investigate and present mitigation evidence; (3) trial counsel was ineffective during the penalty phase for failing to use a mental health expert to present evidence of mental health mitigation; (4) denial of constitutional rights due to Rule of Professional Conduct 4-3.5(d)(4) prevented trial counsel from interviewing jurors and is unconstitutionally vague; (5) execution by lethal injection violates the Eighth Amendment prohibition against cruel and unusual punishment; and (6) cumulative error.

      .Huffv. State, 622 So.2d 982 (Fla. 1993).

      . Because we find that Caylor is entitled to a ■new penalty phase, we do not address Cay-lor's argument that appellate counsel was ineffective for failing to raise an Ake claim on direct appeal.


author: PER CURIAM.

text:
    Kayle Barrington BATES, Appellant, v. STATE of Florida, Appellee.
    No. SC16-1178
    Supreme Court of Florida.
    [May 18, 2017]

      Seth E. Miller and Melissa Montle of Innocence Project of Florida, Inc., Tallahassee, Florida; and Rachel Day, Assistant Capital Collateral Regional Counsel, and Scott Gavin, Staff Attorney, Capital Collateral Regional Counsel, Southern Region, Fort Lauderdale, Florida, for Appellant
    Pamela Jo Bondi, Attorney General, and Charmaine M. Millsaps, Assistant Attorney General, Tallahassee, Florida, for Ap-pellee
   PER CURIAM.

Kayle Barrington Bates, a prisoner under sentence of death, appeals the circuit court’s order summarily denying his successive motion for postconviction DNA testing pursuant to Florida Rule of Criminal Procedure 3.853. We have jurisdiction. See art. V, § 3(b)(1), Fla. Const.

Bates previously moved for post-conviction DNA testing of several items of evidence from the crime scene, which the circuit court denied and this Court affirmed. Bates v. State, 3 So.3d 1091, 1097-98 (Fla. 2009). In his current motion, Bates seeks DNA testing of ten items, seven of which were previously requested in his first rule 3.853 motion. Specifically, Bates again seeks DNA testing of the following items, rearguing that he did not commit the murder and that the results of testing on these items would exonerate him: (1) the victim’s panties; (2) the victim’s vaginal swab; (3) semen smear slides; (4) the victim’s skirt and hosiery; (5) an acid phosphatase test; (6) the victim’s vaginal washing; and (7) the blue cord used to strangle the victim. In denying Bates’ pri- or motion, we rejected Bates’ argument that DNA testing on these items would produce a reasonable probability of his exoneration in light of the “accumulation of evidence” establishing his identity as the perpetrator. Id. at 1099. Because Bates seeks to relitigate questions of law already decided by this Court, his claims as to these seven items are procedurally barred. See Zeigler v. State, 116 So.3d 255, 258 (Fla. 2013) (holding defendant’s successive rule 3.853 motion was procedurally barred because his prior motion raising the same claims was denied by the trial court and affirmed by this Court).

Further, we affirm the circuit court’s denial of DNA testing on the three remaining items not subject to the procedural bar. Regarding the first two items, Bates alleges that debris from the victim’s clothing, which includes a Caucasian hair sample that Bates alleges could not be his because he is African American, and the victim’s fingernail clippings could contain DNA of the actual killer and therefore exonerate him. Bates further argues that if DNA testing on these items excludes his DNA, he would also be exonerated. Like the seven items for which DNA testing has already been denied, favorable testing from these additional items would not establish that Bates is not the perpetrator, as the evidence of Bates’ guilt is overwhelming:

Bates was arrested at the scene of the crime just minutes after the victim’s death. He had the victim’s diamond ring in his pocket, and he tried to conceal it from law enforcement officers. A watch pin consistent with Bates’ watch was found inside the victim’s office, and Bates’ watch was missing a watch pin. Footprints consistent with Bates’ shoes were found behind the State Farm office building!, where the victim’s body was found]. Bates’ hat was found near the victim’s body. Two green fibers were found on the victim’s clothing—one on her blouse and one on her skirt—that were consistent with the material that Bates’ pants were made of. A knife case was found near the victim’s body, and that case was identified by various witnesses., as being -the exact type that Bates wore.. The victim’s two fatal stab wounds were consistent with the type of buck knife that Bates carried in that case. The. consistency between the stab wounds and Bates’ knife was striking; the wounds were four inehes deep, and Bates’ knife was four inches long; the width of the wounds was consistent with the width of Bates’ knife; and ,.. there were abrasions at the bottom of the wound that were consistent with marks that Bates’ knife would havfe ‘ made. Bates’ statements to investigators and at his trial also placed him either at the scene of the crime or directly involved in the victim’s murder. Bates stated during á telephone call to his wife after his arrest that he killed a woman.

Bates, 3 So.3d at 1099.

In light of this evidence, the absence of Bates’ DNA or the presence of .an unknown male contributor’s DNA on the debris would not imply, that Bates is not the perpetrator. Similarly, DNA testing, of the hair sample would not conclusively identify the perpetrator, as there is no way of knowing when, where, and how the hair (if it is not the victim’s) was deposited on the victim’s clothing. See Overton v. State, 976 So.2d 536, 568 (Fla. 2007). For the same reason, results from testing the victim’s fingernail clippings would not establish that Bates is not the perpetrator. See Hodgkins v. State, 175 So.3d 741, 756 (Fla. 2015) (Canady, J., dissenting) (explaining that DNA is often deposited under fingernails through casual contact); see also State v. Fitzpatrick, 118 So.3d 737, 770 (Fla. 2013) (noting the lack of any scientific method to. determine when DNA was deposited), Finally, regarding the third item, because Bates’ other requests for testing were properly denied, there is no reasonable probability that testing the victim’s blood sample, hair, and saliva standards for comparison with the other requested items would exonerate him. In light of the overwhelming evidence of Bates’ guilt, there is no reasonable probability that the results of DNA testing on these three additional items would have resulted in his acquittal or reduced his sentence.

Accordingly, we affirm the circuit court’s order denying Bates' successive motion for postconviction DNA testing.

It is so ordered.

LABARGA, C.J., and PARIENTE, LEWIS', QUINCE, CANADY, POLSTON, and LAWSON, JJ., concur.


text:
    Guerry Wayne HERTZ, Petitioner, v. Julie L. JONES, etc., Respondent.
    No. SC17-456
    Supreme Court of Florida.
    [May 18, 2017]

      Clyde M. Taylor, Jr., of Taylor & Taylor, LLC, Saint Augustine, Florida; and Billy H. Ñolas, Chief, Capital Habeas Unit, Office of the Federal Public Defender, Northern District of Florida, Tallahassee, Florida, for Petitioner
    No appearance for Respondent
   PER CURIAM.

This case is before the Court on the petition of Guerry Wayne Hertz for a writ of habeas corpus. We have jurisdiction. See art. V, § 3(b)(9), Fla. Const.

FACTS

We previously detailed the facts surrounding Hertz’s case on his direct appeal:

In the early morning hours of July 27, 1997, the charred bodies of Melanie King and Robin Keith Spears were found in the victims’ burning home in Wakulla County, Florida. Hertz, Jason Looney, and Jimmy Dempsey were each indicted for the first-degree murders of the victims, and each codefendant was also charged with burglary of a dwelling while armed, armed robbery with a firearm, arson of a dwelling, and use of a firearm during the commission of a felony as a result of this incident. Prior to trial, codefendant Dempsey negotiated a plea with the State and was sentenced to consecutive life sentences in return for providing his, testimony at Hertz and Looney’s joint trial.
The evidence presented at the trial revealed the following facts. At approximately 11 p.m. on July 26, 1997, Hertz and his codefendants left an acquaintances house on foot within walking distance from the victims’ home. All three men were armed with guns. A resident who lived about 500 yards from the victims testified that Hertz appeared at her door at about 2 a.m. asking to use her phone because “his truck had broken down.” When she refused, the trio continued down the road towards the victims’ home and, upon seeing the victims’ black Mustang, Looney said, “There’s my car right there. That’s the one I want.”'
Dempsey and Hertz went to the. victims’ front door as a decoy and asked if they could use the phone. King provided them with a cordless phone, and Dempsey feigned making a phone call. When Dempsey attempted to return the phone, Hertz pointed his gun at King and forced his way in. Looney then entered and pointed his rifle at Spears. Spears and King were bound and gagged with duct tape and placed face down on. their bed. Hertz and his code-fendants removed a significant amount of the victims’ property, including a VCR, .a television, jewelry, furniture, and CDs, and loaded the victims’ belongings into the victims’ two vehicles. Looney also found approximately $1500 of the victims’ money in an envelope, which was ultimately divided equally among the three.
Hertz and Looney concluded that they could leave no witnesses and informed Dempsey of their decision. Dempsey said Hertz and Looney then poured ac-celerants throughout the victims’ home. All three men, still armed, went to the bedroom where the victims were bound, side-by-side, face down on their bed. When they entered the back bedroom, King said that she would “rather die being burnt up than shot.” She stated, “Please, God, don’t shoot me in the head.” Hertz replied, “Sorry, can’t do that,” and then he proceeded to open fire; Looney followed and then Dempsey. The victims died as a result of the gunshot wounds.
Subsequent to the shootings, the victims’ home was set ablaze. Hertz drove away in the victims’ white Ford Ranger, and Looney drove the victims’ black Ford Mustang, with Dempsey as a passenger. According to Dempsey, the whole episode at the victims’ home lasted about two hours. The trio proceeded to Hertz’s house and unloaded the stolen items and divided up the money. Two employees at the Wal-Mart in Tallahassee testified that the three men made purchases at the store at around 5 a.m. the morning of the murders, before “showing off’ their new vehicles, i.e., a black Mustang and a white Ford Ranger, to both of the employees. A Wal-Mart receipt for a clothing purchase was later found in the victims’ Mustang, corroborating the employees’ testimony.
Hertz and his codefendants made their way to Daytona Beach Shores where, later that day, they were involved in a pursuit and shootout with police. Looney and Dempsey were arrested after abandoning and fleeing from the victims’ black Mustang. Hertz abandoned the victims’ Ford Ranger after being shot, and he paid a cabdriver $100 to drive him to his aunt’s house in St. Augustine. Hertz was arrested that same day in St. Augustine, and victim Spears’ ,9mm gun was recovered from Hertz’s bag.
A firearms expert with FDLE testified that one of the bullets recovered from the area of the victims’ burned bed was fired from the .380 Lorcin handgun recovered from Looney at the time of his arrest in Daytona Beach, i.e., the same handgun owned by Keith Spears and used, according to Dempsey, by Hertz to shoot the victims. The other bullet was fired from a .30 caliber carbine rifle, not inconsistent with [a] .30 caliber rifle used by Looney to shoot the victims, and later recovered in the victims’ Mustang. A roll of duct tape, Looney’s wallet with $464, and Dempsey’s wallet with $380 were also found in the Mustang. A fingerprint analyst with FDLE analyzed latent fingerprints taken from the Mustang and concluded that Hertz and his codefendants had all touched the car. The chemist found evidence of various accelerants on items of clothing -found in the Mustang. In addition, a law enforcement investigator with the State Fire Marshal’s Office testified that the kind of damage that was done by the fire does not happen unless an accelerant is used.
The state medical examiner testified that the bodies were severely burned. He graphically detailed the condition of the bodies as depicted in the photographs: the legs were burned off below the knees, the hands were burned to nubs, the bones of the arms were fractured by the fire, and the skulls were burned partially away. The victims had to be positively identified by dental records. The medical examiner also testified that there could have been other injuries that were not detected due to the extensive burns.
King was shot at least two times in the head, which caused her death. However, the medical examiner was not able to trace the path of the bullet because the skull was burned away. He testified that it was possible that other bullets struck the body, which could not be determined because of the fire. King lived one to two minutes after she was shot. However, there was no soot in the trachea, indicating that she was not alive when the fire started. Spears was shot at least one time in the head, which caused his death. The bullet went in the back of the neck and exited above the right eye. Spears also lived one-to two minutes after he was shot, and again, no soot was discovered in his trachea, meaning that he was dead at the time of the fire. The defense did not present any evidence.

Hertz v. State, 803 So.2d 629, 636-37 (Fla. 2001).

Hertz was convicted and sentenced to death for the first-degree murders of Melanie King and Robin Keith Spears. Id. at 637. A jury recommended a sentence of death by a vote of ten to two, and the trial court sentenced Hertz to death for both murders. Id.

[T]he trial court found as aggravating factors that (1) the capital felony was committed by a person convicted of a felony and who was on felony probation; (2) the capital felony was committed by a person previously convicted of another capital felony or of a felony involving the use or threat of violence to the person; (3) the capital felony was committed while Hertz was engaged in the commission of a burglary, arson, and robbery; (4) the capital felony was committed for the purpose of avoiding or preventing a lawful arrest or effecting an escape from custody; (5) the murder was committed for financial or pecuniary gain (the court merged this aggravating factor with the fact that the capital felony was committed during the course of a burglary, arson, or robbery); (6) the murder was especially heinous, atrocious, or cruel, and (7) the murder was cold, calculated, and premeditated without any pretense of moral or legal justification.
In mitigation, the trial court found (1) Hertz’s impaired capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was given some weight; (2) his age of 20, which was given only moderate weight; (3) as to all other nonstatutory mitigation, (a) Hertz’s difficult childhood was given significant weight; (b) the fact that Hertz had no significant criminal history or no history of violence and the fact that he posed no problems since being incarcerated were given marginal weight; (c) that Hertz’s remorse and the fact that he cried during some of the testimony and when he made his statement to the court was given moderate weight; (d) the fact that society would be adequately protected if he were to be given a life sentence without the possibility of parole was entitled to “no weight” and (e) the fact that a codefen-dant, Dempsey, received a life sentence following a plea, was given significant weight and substantially considered by the trial court.

Id. at 637-38.

On direct appeal, we affirmed Hertz’s convictions and sentences. Id. at 654. The United States Supreme Court denied cer-tiorari review on June 28, 2002. Hertz v. Florida, 536 U.S. 963, 122 S.Ct. 2673, 153 L.Ed.2d 846 (2002).

ANALYSIS

We conclude that the appropriate action is to grant Hertz’s petition, vacate his sentence, and remand for a new penalty phase. Here, the jury recommended death by a vote of ten to two. Thus, Hertz's death sentence violated the central holding in Hurst v. State: all critical findings for the imposition of death must be found unanimously by the jury. Hurst v. State, 202 So.3d 40, 44 (Fla. 2016).

In Mosley v. State, we held that Hurst applies retroactively to those postconviction defendants whose sentences became final after the United States Supreme Court’s June 24, 2002, decision in Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002). Mosley v. State, 209 So.3d 1248, 1283 (Fla. 2016). Hertz’s conviction became final on June 28, 2002. Hertz, 536 U.S. 963, 122 S.Ct. 2673. Thus, Hertz falls within the category of defendants to whom Hurst is applicable.

Accordingly, the issue is then whether any error that occurred during the penalty phase was harmless beyond a reasonable doubt. Although three aggravating factors were necessarily found by a unanimous vote of the jury—(1) the capital felony was committed by a person convicted of a felony and who was on felony probation; (2) the capital felony was committed by a person previously convicted of another capital felony or of a felony involving the use or threat of violence to the person; and (3) the capital felony was committed while Hertz was engaged in the commission of a burglary, arson, and robbery—-whether these aggravating circumstances were “sufficient” to qualify Hertz for the death penalty would also be a jury determination. Because the jury vote was ten to two, there is no way of knowing if such a finding was unanimous. Moreover, there is no way of knowing if the jury found any of the other aggravating circumstances unanimously, or if any aggravators that were unanimously found were also unanimously found to be sufficient to qualify for the death penalty.

In sum, any attempt to determine what findings were made by the jurors who voted for life and the jurors who voted for death would amount to speculation and cannot rise to the level of proof beyond a reasonable doubt. Accordingly, the error in this case cannot be considered harmless. Thus, we grant the petition for a writ of habeas corpus, vacate Hertz’s death sentence, and remand for a new penalty phase proceeding.

CONCLUSION

Based on the foregoing, we grant the petition for a writ of habeas corpus, vacate Hertz’s sentence, and remand for a new penalty phase proceeding consistent with Hurst.

It is so ordered.

LABARGA, C.J., and PARIENTE, LEWIS, and QUINCE, JJ., concur.

CANADY, POLSTON, and LAWSON, JJ., dissent.

      . Among the non-automatic aggravators were HAC and CCP—two of the weightiest aggra-vators in Florida. Jackson v. State, 18 So.3d 1016, 1035 (Fla. 2009) ("Jackson has not contested the eight aggravating circumstances found by the trial court, which included two of the most serious aggravators (i.e., HAC and CCP).").


text:
    IN RE: AMENDMENTS TO the CODE OF JUDICIAL CONDUCT.
    No. SC17-680
    Supreme Court of Florida.
    [May 18, 2017]
   PER CURIAM.

The Court, on its own motion, amends the Code of Judicial Conduct (Code) to clarify the public financial and gift disclosure requirements for judges, and to reiterate that the filing of the public financial disclosure reports required by the Code is the only public disclosure of financial interests, compensation, gifts, or other benefits a judge or justice is required to make. We adopt these clarifying amendments in response to uncertainty as to some of the reporting requirements expressed by some judges.

When the Court first adopted the Code of Judicial Conduct in 1973, it made clear that the financial reporting requirements of the Code “supersede[ ] the requirements of any statute relating to financial reporting and it will not be necessary for the justices and judges to file reports under any statute since such reports are filed under Canon 6.” In re The Florida Bar—Code of Judicial Conduct, 281 So.2d 21, 22 (Fla. 1973). In 1977, the Court amended Canon 6 in response to the adoption of the full and public financial disclosure requirements of article II, section 8, of the Florida Constitution. At that time, the Court also added the current Canons 5 and 6 gift reporting requirements, recognizing in the Commentary to Canon 6 that the reporting required in Canons 5 and 6 is “in lieu of that prescribed” in Chapter 112, as stated in the Court’s 1973 opinion. See In re Code of Judicial Conduct (Financial Disclosure), 348 So.2d 891, 893 (Fla. 1977). The current Commentary to Canon 6 discussing the required financial disclosure reports reads substantially the same.

In response to the recent uncertainty as to certain reporting- requirements, we have reviewed Canons'5D(5)(a) (Financial Activities; Gifts), 6A (Compensation for Quasi-Judicial and Extrajudicial Services and Reimbursement of Expenses), and 6B (Public Financial Reporting) of the Code, as well as this Court’s prior opinions, and we conclude that the ethical requirements imposed on judges and justices by - the Code, including the financial and gift reporting requirements, remain the standard of conduct and of reporting for the judicial branch. The stated, expectations of conduct ensure the overarching purpose of our Code of Judicial Conduct, which, as stated in the Preamble to the Code, is to establish “standards for ethical conduct of judges” in order to ensure “an independent, fair and competent judiciary” and “to enhance and maintain confidence in our legal system.” Accordingly, we add a new Commentary to Canon 6 to reiterate that “[t]he filing of the disclosure reports required under Canon 6B is the only public disclosure of .financial interests,--compensation, gifts, expense reimbursements, or other benefits that a judge is required to make under this Code or the Florida Constitution. By filing the required disclosure reports, a judge fulfills all the expectations of conduct, and ethical and constitutional requirements related to such disclosure.”

We also amend Canons 5D(5)(&); 6A, and 6B(2) of the Code. The amendments to Canon 5D(5)(a) (Financial Activities; Gifts) and its commentary clarify that the attendance, without charge, of a bar-related event such as a bar-related lunch, dinner, or social event such as a reception or Law Day event does not haye to loe reported as a gift as long as the actual value of attending the individual event does not exceed $100, despite the fact that the aggregate value of attending such functions or events given by the same bar association or other entity in the same calendar year exceeds $100. Even though a judge must report attending, without charge, a bar-related event if the value of attending that event exceeds $100, we encourage all judges to continue to attend, whenever possible, these events which allow our judges to meet with members of the Bar.

The amendments to Canon 6A (Compensation for Quasi-Judicial and Extrajudicial Services and Reimbursement of Expenses) clarify that: (a) allowed compensation is reportable income under Canon 6B(1); (b) honoraria and speaking fees may be accepted and are reportable income under Canon 6B(1); and (c) reimbursement of expenses over the actual cost of the expenses incurred also is reportable income under Canon 6B(1). Additionally, Canons 6A and 6B(2) (Public Financial Reporting; Gifts) and the Commentary to Canon 6 are amended to require that reimbursement for reasonable expenses incurred or the direct payment for a judge’s travel, food, lodging, and other expenses in connection with the judge’s participation in quasi-judicial and extrajudicial activities permitted by this Code is not a gift, but shall be reported under Canon 6B(2), as amended, if the amount of the reimbursement, payment, or waiver alone or in the aggregate with other reimbursements, payments, or waivers received from the same source in the same calendar year exceeds $100.

Accordingly, we amend the Code of Judicial Conduct, as reflected in the appendix to this opinion. New language is indicated by underscoring and deletions are indicated by struck-through type. The amendments are effective, nunc pro tunc, January 1, 2017, with the first disclosure reports under the amended canons due on or before July 1, 2018. Because the amendments were not published for comment prior to their adoption, interested persons shall have sixty days from the date of this opinion in which to file comments with the Court. The Court specifically requests comments from the Judicial Ethics Advisory Committee, the Conference of District Court of Appeal Judges, the Conference of Circuit Court Judges, and the Conference of County Court Judges.

It is so ordered.

LABARGA, C.J., and PARIENTE, LEWIS, QUINCE, CANADY, POLSTON, and LAWSON, JJ., concur.

Attachment

APPENDIX

CANON 5. A Judge Shall Regulate Extrajudicial Activities to Minimize the Risk of Conflict with Judicial Duties

A.—C. [No Change]

D. Financial Activities.

(1)—(4) [No Change]

(5) A judge shall not accept, and shall urge members of the judge’s family residing in the judge’s household not to accept, a gift, bequest, favor or loan from anyone except for:

(a) a gift incident to a public testimonial, books, tapes and other resource materials supplied by publishers on a complimentary basis for official use, or an invitation to the judge and the judge’s spouse or guest to attend a bar-related function or an activity devoted to the improvement of the law, the legal system, or the administration of justice, including attending, without charge, a bar-related lunch, dinner, or social event; and if the value of attending an individual function or event exceeds $100, the judge shall report it under Canon 6B(2);

(b) a gift, award or benefit incident to the business, profession or other separate activity of a spouse or other family member of a judge residing in the judge’s household, including gifts, awards and benefits for the use of both the spouse or other family member and the judge (as spouse or family member), provided the gift, award or benefit could not reasonably be perceived as intended to influence the judge in the performance of judicial duties;

(c) ordinary social hospitality;

(d) a gift from a relative or friend, for a special occasion, such as a wedding, anniversary or birthday, if the gift is fairly commensurate with the occasion and the relationship;

(e) a gift, bequest, favor or loan from a relative or close personal friend whose appearance or interest in a case would in any event require disqualification under Canon 3E;

(f) a loan from a lending institution in its regular course of business on the same terms generally available to persons who are not judges;

(g) a scholarship or fellowship awarded on the same terms and based on the same criteria applied to other applicants; or

(h) any other gift, bequest, favor or loan, only if: the donor is not a party or other person who has come or is likely to come or whose interests have come or are likely to come before the judge; and, if its value, or the aggregate value in a calendar year of such gifts, bequests, favors, or loans from a single source, exceeds $100.00, the judge reports it in the same manner as the judge reports gifts under Canon 6B(2).

E.—G. [No Change]

COMMENTARY

Canons 5A.—5D(5). [No Change]

Canon 5D(5)(a). Acceptance of an invitation to a law-related function is governed by Canon 5D(5)(a); acceptance of an invitation paid for by an individual lawyer or group of lawyers is governed by Canon 5D(5)(h).

The attendance, without charge, of a bar-related lunch, dinner, or social event such as a reception or Law Day event does not have to be reported under Canon 6B(2), as long as the actual value of attending the individual function or event does not exceed $100, despite the fact that the aggregate value of attending such functions or events given by the same bar association or other entity in the same calendar year exceeds $100. This differs from Rule 3.15 of the American Bar Association Model Code of Judicial Conduct (2011), which requires the reporting of such attendance if the value of attending such functions or events alone or in the aggregate from the same source in the same calendar year exceeds a specified amount.

A judge may accept a public testimonial or a gift incident thereto only if the donor organization is not an organization whose members comprise or frequently represent the same side in litigation, and the testimonial and gift are otherwise in compliance with other provisions of this Code. See Canons 5A(1) and 2B.

Canons 5D(5)(d)—5G. [No Change]

CANON 6. Fiscal Matters of a Judge Shall be Conducted in a Manner That Does Not Give the Appearance of Influence or Impropriety; a Judge Shall Regularly File Public Reports as Required by Article II, Section 8, of the Constitution of Florida, and Shall Publicly Report Gifts, Expense Reimbursements and Payments, and Waivers of Fees or Charges; Additional Financial Information Shall be Filed With the Judicial Qualifications Commission to Ensure Full Financial Disclosure

A. Compensation for Quasi-Judicial and Extrajudicial Services, and Reimbursement or Payment of Expenses, and Waivér of Fees or Charges.

A judge may receive accept compensation, and reimbursement, or direct payment of expenses, and a waiver or partial waiver of fees or charges for registration, tuition, and similar items for-the associated with the judge’s participation in quasi-judicial and extrajudicial activities permitted by this Code, if the source of such payments, or waiver does not give the appearance of influencing the judge in the performance of judicial duties or otherwise give the appearance of impropriety, subject to the following restrictions:

(1).Compensation. Compensation shall not exceed a .reasonable amount nor shall it exceed what a person who is not a judge would receive for the same activity. Compensation is reportable as income under Canon 6B(1).

(2) Honoraria and Speaking Fees, A judge may accept honoraria and speaking fees that are reasonable and commensurate with the task performed. Honoraria and speaking fees are reportable as income under Canon 6B(1).

(3) Reimbursement or Payment of Expenses, and Waiver of Fees or Charges ■Reimbursement. Expense reimbursement shall be limited to the actual cost of travel, food, and lodging reasonably incurred by the judge and, where appropriate to the occasion, to the judge’s spouse. Any payment in excess of such an amount is compensation and is reportable as income under Canon 6B(1). Reimbursement or direct payment of expenses, and waiver or partial waiver of fees or charges for the judge or the judge’s spouse or guest, the amount of which alone or in the aggregate with other reimbursements, payments, or waivers received from the same source in the same calendar year exceeds $100, shall be reported under Canon 6B(2).

B. Public Financial Reporting,

(1) Income and Assets. A judge shall file such public report as may be required by law for all public officials to comply fully with the provisions of Article II, Section 8, of the Constitution of Florida. The form for public financial disclosure shall be that recommended or adopted by the Florida Commission on Ethics for use by all public officials. The form shall be filed with the Florida Commission on Ethics on the date prescribed by law, and a copy shall be filed simultaneously with the Judicial'Qualifications Commission.

(2) Gifts, Reimbursements or Payments of Expenses, and Waivers , of Fees or Charges. A judge shall file a public report of all gifts which are required to be disclosed under Canons 5D(5)(a) and 5D(5)(h) of the Code of Judicial Conduct, and of all reimbursements or direct payments of expenses, and waivers of fees or charges required to be disclosed under Canon 6A(3). The report of the gifts, expense reimbursements or direct payments, and waivers received in the preceding calendar year shall be filed with the Florida Commission on Ethics on or before July 1 of each year. Disclosure shall be made using Form 6A in the commentary below. A copy shall be filed simultaneously with the Judicial Qualifications Commission.

(3) [No Change]

C.—D. [No Change]

COMMENTARY

Canon 6A. See Section 5D(5)(a)-(h) regarding reporting of gifts, bequests and loans.

The Code does not prohibit a judge from accepting honoraria or speaking fees provided that the compensation is reasonable and commensurate with the task performed. A judge should ensure, however, that no conflicts are created by the arrangement. Judges must not appear to trade on the judicial position for personal advantage. Nor should a judge spend significant time away from court duties to meet speaking or writing commitments for compensation. In addition, the source of the payment must not raise any question of undue influence or the judge’s ability or willingness to be impartial.

The reporting requirement for expense reimbursements and payments, and waivers of fees or charges is similar to the reporting requirement for expense reimbursements and waivers in Rule 3.15(A)(3) of the American Bar Association Model Code of Judicial Conduct (2011), in that reimbursements, payments, and waivers must be reported if the amount of reimbursement, payment, or waiver, alone or in the aggregate with other reimbursements, payments, or waivers received from the same source in the same calendar year, exceeds the specified amount of $100. However, unlike the model rule, the amount of a reportable reimbursement, payment, or waiver does not have to be reported on Form 6A, but the dates, location, and purpose of the event or activity for which expenses, fees, or charges were reimbursed, paid, or waived must be reported.

Canons 6B and 6C. Subparagraph A prescribes guidelines for additional compensation. and the reimbursements, or direct payments of expenses, funds and waivers of fees or charges received accepted by a judge.

Subparagraphs B and C prescribe the three types of financial disclosure reports required of each judicial officer. The filing of the disclosure reports required under Canon 6B is the only public disclosure of financial interests, compensation, gifts, expense reimbursements, or other benefits that a judge is required to make under this Code or the Florida Constitution. By filing the required disclosure reports, a judge fulfills all the expectations of conduct, and ethical and constitutional requirements related to such disclosure.

The first disclosure report is the Ethics Commission’s constitutionally required form pursuant to Article II, Section 8, of the Constitution. It must be filed each year as prescribed by law. The financial reporting period is for the previous calendar year. A final disclosure statement generally is required when a judge leaves office. The filing of the income tax return is a permissible alternative.

The second is a report of gifts, reimbursements or direct payments of expenses, and waivers of fees or charges received accepted during the preceding calendar year to be filed publicly with the Florida Commission on Ethics. The gifts to be reported are in accordance with Canons 5D(5)(a) and 5D(5)(h). The expense reimbursements and payments, and waivers to be reported are in accordance with Canon 6A(3). This reporting is in lieu of that prescribed by statute as stated in the Supreme Court’s opinion rendered in In re Code of Judicial Conduct, 281 So.2d 21 (Fla. 1973). The form for this report is as follows:

Form 6A. Disclosure of Gifts, Expense Reimbursements or Payments, and Waivers of Fees and Charges Disclosure

, All judicial officers must file with the Florida Commission on Ktliics a list of all reportable gifts, reimbursements or direct payments of expenses, and waivers of fees or charges receivedaccepted during the preceding calendar year of a value in excess of$lQ0:00 as provided in Canons 5D(5¥a) and 5D(5¥h). md-Canon 6AÍ3), and Canon 6B(2) of the Code of Judicial Conduct, by date received, description fincluding dates, location, and purpose of event or activity for which expenses. fees, or charges were reimbursed, paid, or waived), source’s name, and amount for gifts only.

Name:_

Work Telephone:_

Work Address:_

PositionJudicial Office Held:_

h Please identify all reportable gifts, bequests, favors, or loans you received during the preceding calendar year of-a-value in excesfl-⅜ 100:00, as required by Canons 5D(5¥a). 5D(5Yh). and €aia&B-6J3(2) of Are Code of Judicial Conduct.

□ Check here if continued on separate sheet

2. Please identify all recortable reimbursements or direct payments of expenses. and waivers of fees or charges you received during the preceding calendar year, as required by Canons 6A(3) and 6B(2) of the Code of Judicial Conduct.

□ Check here if continued on separate sheet

OATH

State of Florida

County of_:

I,_, the public official filing this disclosure statement, being first duly sworn, do depose on oath and say that the facts set forth in the above statement are true, correct, and complete to the best of my knowledge and belief.

(Signature of Reporting Official)

(Signature of Officer Authorized to Administer Oaths)

My Commission expires_

Sworn to and subscribed before me this

_day of_ _,20_

COMMENTARY

The third financial disclosure report is prescribed in subparagraph C. This provision ensures that there will be complete financial information for all judicial officers available with the Judicial Qualifications Commission by requiring that full disclosure be filed confidentially with the Judicial Qualifications Commission in the event the limited disclosure alternative is selected under the provisions of Article II, Section 8.

The amendment to this Canon requires in 6B(2) a separate gift report to be filed with the Florida Commission on Ethics on or before July 1 of each year. The form to be used for that report is included in the commentary to Canon 6. It should be noted that Canon 5, as it presently exists, restricts and prohibits the receipt acceptance of certain gifts. This provision is not applicable to other public officials.

With reference to financial disclosure, if the judge chooses the limited disclosure alternative available under the provision of Article II, Section 8, of the Constitution of Florida, without the inclusion of the judge’s Federal Income Tax Return, then the judge must file with the Commission a list of the names of corporations or other business entities in which the judge has a financial interest even though the amount is less than $1,000. This information remains confidential until a request is made by a party to a cause before the judge. This latter provision continues to ensure that complete financial information for all judicial officers is available with the Judicial Qualifications Commission and that parties who are concerned about a judge’s possible financial interest have a means of obtaining that information as it pertains to a particular cause before the judge.

Canon 6D. [No Change]

      . We have jurisdiction. See art. V, § 2(a), Fla. Const.

      . The Court thanks the Code of Judicial Conduct Workgroup, appointed by Chief Justice Labarga, for its report, -which, together with the uncertainties raised, led to the Court’s review of the pertinent canons.

      . All comments must be filed with the Court on or before July 17, 2017, with a separate request for oral argument if the person filing the comment wishes to participate in oral argument which may be scheduled in this case. If filed by an attorney in good standing with The Florida Bar, the comment must be electronically filed via the Florida Courts E-Filing Portal (Portal) in accordance with In re Electronic Filing in the Supreme Court of Florida via the Florida Courts E-Filing Portal, Fla. Admin. Order No. AOSC13-7 (Feb. 18, 2013). If filed by a nonlawyer or a lawyer not licensed to practice in Florida, the comment may be, but is not required to be, filed via the Portal. Comments filed via the Portal must be submitted in Microsoft Word 97 or higher. See In re Electronic Filing in the Florida Supreme Court, Fla. Admin. Order No. AOSCI7-27 (May 9, 2017). Any person unable to submit a comment electronically must mail or hand-deliver the originally signed comment to the Florida Supreme Court, Office of the Clerk, 500 South Duval Street, Tallahassee, Florida 32399-1927; no additional copies are required or will be accepted.


text:
    Dominique WRIGHT, Petitioner, v. STATE of Florida, Respondent.
    No. SC16-1534
    Supreme Court of Florida.
    [May 18, 2017]
    Carol Stafford Haughwout, Public Defender, and Gary Lee Caldwell, Assistant Public Defender, Fifteenth Judicial Circuit, West Palm Beach, Florida, for Petitioner
    Pamela Jo Bondi, Attorney General, Tallahassee, Florida; and Celia Terenzio, Bureau Chief, and Melynda L. Melear, Senior Assistant Attorney General, West Palm Beach, Florida, for Respondent
   PER CURIAM.

We initially accepted discretionary review of the decision in Wright v. State, 199 So.3d 1019 (Fla. 4th DCA 2016). Upon further consideration, we exercise our discretion and discharge jurisdiction. Accordingly, we hereby dismiss this review proceeding.

It is so ordered.

No motion for rehearing will be entertained by the Court. See Fla. R. App. P. 9.330(d)(2).

LABARGA, C.J., and PARIENTE, LEWIS, QUINCE, CANADY, POLSTON, and LAWSON, JJ., concur.