Appellate court overturns Volusia County ruling and says 8-4 applies.

In an Order issued today, the Fifth DCA said that the new 8-4 statute applies to the Hurst resentencing proceedings that were underway in Volusia County when Gov. DeSantis signed the new law.

A few weeks ago, in the Hurst resentencing trial of codefendants Troy Victorino and Jerone Hunter in Volusia County, the trial judge ruled that the trial would proceed under Florida’s prior unanimity statute.¹ The Court’s reasoning focused on the fact that the trial was underway when Gov. DeSantis signed the new 8-4 law into effect, and the jury had been given extensive instructions on unanimity. (Prior post on that ruling here.)²

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State’s Emergency Filings and Stay

The State immediately filed an emergency petition for writ of certiorari with the Fifth District Court of Appeal, an intermediate appellate court:

The State also filed an emergency motion to stay the resentencing proceedings:

The Fifth DCA immediately granted the stay in a very short Order:

As a result, the resentencing proceeding has been stayed since that Order on April 27, 2023, while the State’s petition was pending.

After the stay, the trial court told the jury that it remains bound by prior orders to not discuss the case and will be given further direction as it becomes available. More here.

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Fifth DCA Grants State’s Petition

On Wednesday, the defense filed a motion to expedite.

In a very simple Order issued this afternoon, the Court granted the State’s petition, ruling that the new law will apply to the resentencing proceeding:

Notably, the vote was 2-1. Judge Harris voted to deny the petition.

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Original Jury Votes

The original jury votes for death in these two cases are all over the place. The jury votes were different in each case. Here are the jury’s votes in both cases for all six victims:³

1. Erin Belanger

   1. Victorino: 10-2

   2. Hunter: Life

2. Francisco Ayo-Roman

   1. Victorino: 10-2

   2. Hunter: Life

3. Jonathan Gleason

   1. Victorino: 7-5

   2. Hunter: 10-2

4. Roberto Gonzalez

   1. Victorino: 9-3

   2. Hunter: 9-3

5. Michelle Nathan

   1. Victorino: Life

   2. Hunter: 10-2

6. Anthony Vega

   1. Victorino: Life

   2. Hunter: 9-3

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1. The media refers to this case as the “Xbox murders.” For more information on Hurst, see this page.

2. Note that there was also a Broward County ruling that the 8-4 will apply in a resentencing that’s in process. (Post on that here.)

3. Victorino v. State, 23 So. 3d 87, 94 (Fla. 2009); Hunter v. State, 8 So. 3d 1052, 1060-61 (Fla. 2008).