Polk County: Applying 8-4 statute would violate Ex Post Facto Clause.

Yesterday, a Tenth Circuit judge ruled that applying Florida’s new capital sentencing statute to cases that were pending when the law was enacted on April 20 would violate the Ex Post Facto Clause.

Yesterday, a Tenth Circuit judge presiding over two cases in Polk County ruled that applying Florida’s new capital sentencing statute (which allows a sentence of death with a jury’s recommendation by a vote of at least 8-4) to cases that were pending when the law was enacted on April 20 would violate the Ex Post Facto Clause. In each case, the defendant is awaiting trial for crimes that occurred between Hurst and the new statute going into effect.¹

Angel Lobato is awaiting trial on crimes that occurred in November 2020. Bryan Riley is awaiting trial on crimes that occurred in September 2021.

When the crimes occurred in both cases, Florida’s capital sentencing statute required a jury’s unanimous recommendation for death, among other unanimous jury determinations. Now, Florida’s capital sentencing statute requires a jury vote of only 8-4 to recommend death.²

In each case, the Court issued an Order determining that applying the new statute to the defendant’s trial would violate the Ex Post Facto Clause. Of the change in the statute, the Court said:

It takes no empirical evidence, but only a reasonable measure of practical wisdom, to agree that the prospect of persuading 8 members, as compared to every last member, of a 12-member jury to return a death recommendation is significantly (if not substantially) more likely.

The Court also addressed a change in the new statute that requires the trial judge to enter a written explanation if he/she does not follow the jury’s recommendation for death. While the State suggests this requirement is a form of “procedural check”—and this was used as a sort of safeguard in the legislative process—the Court explained that there is more than meets the eye to these determinations and this requirement could complicate the process:

Under the prior version, the sentencing judge could override a jury’s recommendation for death without having to explain himself and such decision would be unreviewable. Of course, the responsible sentencing judge under prior law would presumably engage in the same thoughtful analysis with respect to the balance of aggravation and mitigation and the appropriateness of the death penalty, and would assuredly afford the jury’s recommendation the weight it is entitled to under the law. By the same token, the judge would not be burdened with the task of reducing to writing its reasons for overriding the jury’s recommendation. This burden would be especially weighty under the circumstance in which the judge agrees that the aggravating factors outweigh the mitigating circumstances but disagrees that the Defendant should be put to death. Such a grant of mercy . . . unquestionably results in a lawful sentence. However, the reasons for granting mercy . . . would likely be difficult to express in words.

(Citation omitted.)

The Court reasoned that the new statute poses a higher risk to the defendant of being sentenced to death and applying that risk, which did not exist at the time of the crimes, to the defendant violates the Ex Post Facto Clauses of the U.S. and Florida Constitutions.

For the same reasons, in the Riley Order, the Court also granted in part the defense’s motion to hold the new statute unconstitutional.

8-4 Rulings Around the State

The Polk County ruling is one of several that have been made regarding how the 8-4 statute applies to cases that were pending when it went into effect. This holding is in the minority, as a majority of courts that have ruled on this question have held that the 8-4 statute applies.

• Broward County

  • Ruled that the 8-4 statute applies to YNW Melly’s case, in which he is being tried for crimes that occurred in 2019. The trial is underway. More information here.

  • Applied the 8-4 statute applies to Clarck Paul’s case, in which he was being tried for crimes that occurred in 2016. More information here. Paul was convicted, and sentencing is set for September 5.

• Duval County - Applied the 8-4 statute to Michael Jackson’s Hurst resentencing proceeding. The jury voted 8-4 to recommend death. His sentencing is scheduled for August 11. More here.

• Escambia County - Ruled that the 8-4 statute applies to Leonard Gonzalez’s Hurst resentencing proceeding. Gonzalez filed a petition for writ of prohibition at the Florida Supreme Court seeking relief from the ruling. Dismissal of the petition is pending. More here and here.

• Highlands County - Ruled that the 8-4 statute applies to Zephen Xaver’s upcoming trial for crimes that occurred in 2019. More here.

• Lee County - Applied the 8-4 statute to Joseph Zieler’s case. He was sentenced to death in late June after a jury recommended death by a vote of 10-2. More information here.

• Polk County - Ruled that applying the 8-4 statute to new cases pending when the statute went into effect violates Ex Post Facto.

• Volusia County - Ruled that the 8-4 statute did not apply to Hurst resentencing of Hunter and Victorino. The Fifth District Court of Appeal granted the State’s petition and directed that the 8-4 statute would apply. The resentencing proceedings are still pending.

  • More info on the trial court’s rulings here.

  • More info on the Fifth District’s Order here.

  • More info on the mistrial after the Fifth District’s Order here.

• Wakulla County - Ruled that the 8-4 statute applies to the Hurst resentencing proceedings of Guerry Hertz and Jason Looney. Hertz and Looney filed petitions for writ of prohibition at the Florida Supreme Court seeking relief from the ruling. Dismissal of the petitions is pending.

  • More info on the petitions is here.

  • More info on the litigation regarding dismissal is here and here.

1. For a full explanation of Hurst, see the TFDP five-part series available here.

2. TFDP covered the entire legislative process that led to this new statute. It is available in the Archive.