Judge declares mistrial in Volusia County resentencing cases.
Judge declares mistrial in Volusia County resentencing cases.
On Tuesday, the trial court declared a mistrial due to scheduling issues caused by the stay put in place when the State sought review of the court's ruling on the applicability of the new statute.
Two Volusia County Hurst resentencing cases—the cases of codefendants Jerone Hunter and Troy Victorino1—have been on the frontlines of litigation related to the new capital sentencing statute.
Background
Hunter and Victorino were convicted of crimes that occurred in 2004 and sentenced to death. The jury votes for each of the six victims in both cases, while different, were non-unanimous.2 After Hurst,3 both Hunter and Victorino were granted resentencing proceedings.
The joint resentencing was underway when Gov. DeSantis signed the new capital sentencing statute on April 20, changing the required jury recommendation for death from 12-0 to 8-4.
As I’ve previously covered, the trial court originally ruled that Florida’s prior capital sentencing statute, which required a jury’s unanimous recommendation for death, would continue to apply because the trial had already started when the new law was signed.
The State filed an emergency petition with the Fifth District Court of Appeal and an emergency motion to stay the trial, which the Fifth District granted in an Order dated April 27. The case was stayed pending the Fifth District’s ruling on the State’s petition. On May 11, the Fifth District issued a very short Order granting the State’s petition and directing that the new statute should apply to the proceedings. (This was covered here.)
On Sunday, May 14, defense attorneys filed motion for rehearing en banc, which remains pending in the Fifth District.
Back in the Trial Court
After the Fifth District’s Order, the case went back to the trial court after being stayed for two weeks.
Filings Related to New Statute
Back in the trial court, the defense filed several motions, including objections to the constitutionality of the statute, a motion to bar the death penalty, and a motion to allow the use of a special verdict form in light of the new statute.
Trial Court Declares Mistrial
On Tuesday, as reported by News6 in Orlando, “[t]he judge and attorneys questioned jurors on their availability for resentencing . . . after an attorney for Victorino asked to push back the restart for a couple days while they wait for appeals court’s written opinion to be filed.”
The Daytona Beach News-Journal reported that the jury was original told they would be finished by May 5.
When asked about their availability, several jurors expressed concern. One woman on the jury “worried she would be unable to pay the bills because her company is no longer paying her since the resentencing has lasted longer than expected,” The Daytona Beach News-Journal reported. A male juror was worried about losing his or her job or reduced income if he had to continue missing work.
Another juror had a surgery scheduled, which she offered to reschedule. Another juror is scheduled to depart on a trip to Greece on June 5, for which she has already paid.
Based on additional information from the reporter who was at the hearing on Tuesday, the jury wasn’t the only source of scheduling issues. There were additional issues with expert availability, The Daytona Beach News-Journal reported:
Defense attorney Ann Finnell, who represents Victorino, said several of her defense experts would not be available until late June. The experts had been scheduled to appear earlier in the resentencing but it was paused during that time.
The defense even offered “to go forward with only 11 jurors but only if the state agreed that the death recommendation would require unanimity.” The state did not agree to unanimity.
As a result of the scheduling issues caused by the stay, the trial court declared a mistrial. Here’s a quote from the News6 article:
“My bailiffs have been calling this a massive dumpster fire, which I kind of like,” Judge Randell Rowe said. “We’ve been spending a lot of time trying to save this trial. . . . We’ve spent all this time exploring all possible options and we can’t come up with anything so that we can get this done... We’re just going to call it off and start over another day.”
Both Victorino and Hunter will return to prison and await another rescheduled resentencing.
The media refers to these cases as the “Xbox murders.”