State takes opposing positions on whether the Florida Supreme Court should review new statute.
Recent filings by the State seem to take opposite positions as to whether the Court should address the applicability of Florida’s new capital sentencing scheme to pending resentencing proceedings.
In two recent filings at the Florida Supreme Court, the State seems to take opposite positions as to whether the Court should address the applicability of Florida’s new capital sentencing scheme to Hurst resentencing proceedings that were pending when Gov. DeSantis signed the new statute into law.
Background
As a quick recap, Florida changed its capital sentencing statute effective April 20 when Gov. DeSantis signed the bill into law.1 When the bill was signed, 57 people on Florida’s death row were still awaiting resentencing proceedings that had been granted in 2016-18 after Hurst.2
Hertz and Looney - State Seeks to Dismiss
As I previously covered in the most popular post on TFDP to date by far, two petitions are pending at the Florida Supreme Court in which Hertz and Looney (who have both been on Florida’s death row for decades) have asked the Court to weigh in on the applicability of Florida’s new capital sentencing scheme to their pending Hurst resentencing proceedings. Note that the petitions do not ask the Court to address the constitutionality of the statute on its face.
Without objection from the State, the Court stayed the resentencing proceedings pending the Court’s resolution of the cases. A footnote in the State’s filing yesterday suggests that it regrets not objecting to the stay:
Yesterday, the State filed Motions to Dismiss the Petitions, arguing that the issues presented are “best addressed in a post-trial direct appeal” and that the vehicle used by Hertz and Looney in seeking the Court’s opinion is inappropriate:
Further, the State argues that any challenge to the statute itself, to the extent one is raised, is “unripe because [the petitioner] has not been sentenced to death based on a non-unanimous recommendation of death.”
The State also argues that, to the extent the Court could exercise its discretion to hear these issues now, it should decline to do so because “nothing about th[e] case calls out for immediate attention.” The State argues that the case does not even involve the retroactive application of the new statute since the resentencing itself did not start until after the new law went into effect:
Gonzalez - State Asks the Court to Decline Dismissal
The State’s position in Hertz and Looney does not seem odd at first glance. However, what I haven’t covered yet is another petition pending at the Court that raises similar issues, which the Court has sought to keep at the Court.
Background of the Case
Leonard Gonzalez, Jr. was convicted of two murders that occurred in July 2009. He was sentenced to death after a jury recommended death for both murders by a vote of 10-2. After Hurst, Gonzalez was granted a new penalty phase. Gonzalez’s new penalty phase was scheduled to start on May 15, 2023—shortly after Gov. DeSantis signed the new capital sentencing law into effect. The trial court canceled the resentencing pending resolution of issues related to the new statute.
Petition Filed May 23, 2023
On May 23, 2023, Leonard Gonzalez filed a Petition for Writ of Prohibition; Petition for Writ of Certiorari in the Florida Supreme Court seeking the Court’s review of several orders by the trial court, including an order denying Gonzalez’s motion to find that the new capital sentencing statute does not apply to his Hurst resentencing proceeding.
Here’s the relief sought in the petition:
On June 8, 2023, the State filed its response to Gonzalez’s petition.
On June 13, 2023, Gonzalez filed a Notice of Voluntary Dismissal:
The next day, the State objected to the dismissal:
The State said that the “Court should decline to accept the unilateral request to dismiss th[e] case,” arguing that “[t]he constitutionality of, and the proper application of, Florida’s recently amended death penalty statute is of obvious importance” and should be decided now:
The State even referenced Hertz and Looney in its argument as to why the Court should decide this issue now and the statewide impact a ruling would have:
The State further argued that the Florida Supreme Court is the proper Court to hear the issue, stating that the Court “has a special expertise in this area of the law due to its exclusive jurisdiction over capital cases.”3
Thus, the State argued that the Court should decline to dismiss Gonzalez.
These two filings by the State seem difficult to reconcile. Stay tuned.
PS. Assuming the Court keeps these cases, I selfishly hope that the ultimate decision is referenced as Looney and not Hertz for one reason only—how confusing would it be to have Hurst and Hertz?
TFDP covered the entire legislative process that led to this new statute, which is available in the Archive.