Florida Supreme Court stays two Hurst resentencing proceedings in Wakulla County

On Monday, the Florida Supreme Court stayed two Hurst resentencing proceedings pending in Wakulla County for crimes that occurred in 1997.

I got an opportunity to speak briefly with Guerry Hertz, who has been on Florida’s death row since 1999, on the prison tour I attended earlier this year.¹ While walking through death row at Union Correctional Institution, I stopped and talked to him. I asked his name, and he said “Hertz - like the rental car company.” I asked when he was sentenced, and he said 1999. I said, “Oh so you weren’t eligible for Hurst relief?” He explained that he “just made” the cutoff because his direct appeal did not become final until after Ring. He said he was still waiting for his resentencing.

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Background

Hertz and his codefendant, Jason Looney, were sentenced to death for two murders that occurred in July 1997.

Both were sentenced to death after the jury voted 10-2 to recommend a sentence of death.² Their sentences of death became final on June 28, 2022—just days after the U.S. Supreme Court decided Ring v. Arizona, which was the cutoff for retroactive application of Hurst—making them eligible for the retroactive application of Hurst.³ After Hurst, both Hertz and Looney were granted resentencing proceedings.

The new penalty phase was scheduled to begin Monday.

Ahead of the new penalty phase, the trial court docket shows a flurry of filings related to the application of Florida’s new capital sentencing statute to the proceeding, including several objections and motions by the defense challenging the new statute and seeking to preclude its application to the resentencing.

On Friday, June 16, at 4:39 p.m., the trial court entered an order denying the defense’s Motion for Continuance to Ensure Right to Constitutional Capital Resentencing and While Standard Instructions Remain Unavailable, which was filed Friday at 12:30 p.m.

Also on Friday, the trial court entered an Order denying the defense’s motion to declare the new statute violative of the ex post facto clause. That Order is not publicly available.

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This Week: Florida Supreme Court Stays Resentencing Proceedings

Petitions for Writs of Prohibition

On Sunday, June 18, Hertz and Looney filed petitions for writs of prohibition seeking to prohibit the trial court from applying the new capital sentencing statute to the resentencing proceeding scheduled to begin Monday. (A copy of the petition filed in Looney’s case can be found here.)

Here are the issues presented, as stated:

Note that these issues are specific to the procedural posture of these cases and does not directly address the constitutionality of the statute itself.

Emergency Motions to Stay

In addition to the petitions, on Sunday, Hertz and Looney filed emergency motions to stay the proceedings below pending the resolution of their petitions. On Monday, in very short Orders (one in each case), the Court granted the motions.

Therefore, the resentencing of Hertz and Looney (granted after Hurst) is stayed pending the Florida Supreme Court’s resolution of their petitions.

News article about these cases:

• WCTV

• Yahoo News

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1. The three-part prison tour series is available here.

2. Hertz v. Jones, 218 So. 3d 428, 431 (Fla. 2017).

3. For more information on Hurst, see the TFDP five-part series explaining the entire background on Hurst, available here.