NOT FINAL UNTIL TIME EXPI RES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED

IN THE DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT

STATE OF FLORIDA, ) ) Petitioner, ) ) v. ) Case No. 2D16-3262 ) JOSE ENRIQUE GONZALEZ, ) ) Respondent. ) ___________________________________ ) Opinion filed January 6, 2017.

Petition for Writ of Certiorari to the Circuit Court for Hillsborough County; Samantha L. Ward, Judge. Pamela Jo Bondi, Attorney General, Tallahassee, and Marilyn Muir Beccue, Assistant Attorney General, Tampa, for Petitioner. Howard L. Dimmig, II, Public Defender, and Steven L. Bolotin, Assistant Public Defender, Bartow, for Respondent.

PER CURIAM. Denied. See Hurst v.State, 202 So. 3d 40 (Fla. 2016); Perry v. State, 41 Fla. L. Weekly S449 (Fla. Oct. 14, 2016).

SILBERMAN and CRENSHAW, JJ., Concur. SALARIO, J., Concurs with opinion.- 2 - SALARIO, Judge, Concurring. The State has petitioned for a writ of certiorari to quash a trial court order declaring that section 921.141, Florida Statutes (2016)—governi ng the procedures for determining whether to apply the death penalty—is unconstitutio nal. While the petition was pending, the supreme court decided Hurst, 202 So. 3d 40, an d Perry, 41 Fla. L. Weekly S449. Those cases esta blish that section 921.141 is unc onstitutional insofar as it permits imposition of a death sentence where "ten jurors rec ommend death as opposed to the constitutionally required unanimous, twelve-memb er jury." See Perry, 41 Fla. L. Weekly at S453. Given that holding and the fact tha t the State's petition challenges only the constitutional substance of the trial court 's order, the court is correct to deny it. Because I was a member of the panel that decided S tate v. Jones, 41 Fla. L. Weekly D1853 (Fla. 2d DCA Aug. 10, 2016), however, I write to e xpress my concern that the trial court does not have the legal authority to take the death penalty off the table before Mr. Gonzalez has been tried and convicted of a cap ital offense that might subject him to that penalty. A brief history of recent devel opments concerning Florida's d eath penalty statutes may help orient the reader. In January of last year, the United States Supreme Court decided Hurst v. Florida, 136 S. Ct. 616 (2016), in which it held that the capital sentencing procedures establis hed by sections 775.082(1) and 92 1.141(2) and (3), Florida Statutes (2010), unconstitutionally abridged the Sixth Amendment right to jury trial in criminal cases because they relegated critical sentenc ing determinations to the trial judge rather than the jury. The legislature quickly reac ted and amended those statutes in March to provide the capital sentencing procedures currently on the books.- 3 - See generally ch. 16-13, § 3, at 233-38, Laws of Fla. Then, in October, our supreme court considered Hurst on remand from the United States Supreme Court and held that article I, section 22 of the Florida Constitution and the Eight h Amendment to the United States Constitution require that a jury's decisions on death pe nalty questions be

unanimous. 202 So. 3d at 44. That same day, the supreme court decided Perry, in which it considered the constitutionality of the March 2016 ame ndments and held (1) that most of the provisions of the amended statutes were consti tutional under Hurst but (2) that the amendment to section 921.141(2)(c) was unconstitut ional because it permits a jury to recommend the death penalty upon a vote of ten jurors as opposed to the unanimous vote of twelve jurors. 41 Fla. L. Weekly S449. While Perry was pending and shortly after the trial court ent ered the order at issue here, our court decided Jones. There, we considered f our consolidated murder cases in which trial courts rendered orders, prior to the 2016 statutory amendments, barring the State from seeking the death penalty on grounds tha t the United States Supreme Court's decision in Hurst left the State without a cons titutional procedure for imposing it. Jones, 41 Fla. L. Weekly at D1854. The State sou ght writs of prohibition to challenge the trial courts' author ity to enter these orders, ea ch of which had been entered before the guilt phase of trial based on a request by t he defendant to preclude it from proceeding as a death case. We granted the writs and held that a trial court has no autho rity to determine the applicability of the death penalty before a defen dant has been tried and convicted of a capital offense. We emphasized that capital cas es proceed first through a guilt phase and, if the defendant is convicted, to a penalty phase. The applicability of- 4 - the death penalty is determined at the penalty stage only if th e defendant is convicted of a capital offense. We held t hat the decision to charge a defen dant with first-degree murder and to prosecute that alleged crime as a capital offense through the guilt phase rests solely in the prosecutorial discretion of the state attor ney, which may not be abrogated by a judicial ruling that the penalty is inapplicable prior to the guilt phase. Jones, 41 Fla. L. Weekly at D185 5. In so holding, we relied on the supreme court's decision in State v. Bloom, 497 So. 2d 2 (Fla. 1986), which hel d that prior to a guiltphase trial, a judicial determination that the death penalty is inapplicable impermissibly interferes with the discretion of the state attorney to seek th e death penalty in a capital case. For that reason, we concluded in Jones that notwithstand ing the unconstitutionality of the statut ory procedure for imposing the death penalty, "[t]he trial courts simply have no authority to determine the applicability of the death penalty to defendants who have not been convicted of capital felonies." J ones, 41 Fla. L. Weekly

at D1855. To my mind, the trial court's or der in this case interferes w ith the state attorney's prosecutorial discretion in capital cases in the sam e way that the orders in Jones did. The State charged Mr . Gonzalez in a two-count indic tment with first-degree murder and sexual battery and filed a notice of intent to seek the death penalty on the murder count. Mr. Gonzalez responded with a pretrial motion se eking a declaration that section 921.141 is unconstitutional insofar as it permits penal ty-phase determinations to be made by something less than the unanimous vote of a twelve-m ember jury. There

would be no reason for Mr. Gonzale z to seek that order other th an to preclude the State from prosecuting the case as a felony for which he could be pun ished by death.- 5 - The court entered an order on Mr. Gonzalez's motion that declar ed section 921.141 unconstitutional. Although the order does not explicit ly state that the result of that declaration is that the State may not prosecute the murder count as a capital felony, it cannot reasonably be understood as having any other meaning. The trial court plainly did not intend to render an advisory opinion on the constitutio nality of section 921.141,

and it is difficult to see how the trial court could, for examp le, death qualify a trial jury after having decided that the stat ute regulating the imposition of the death penalty is

unconstitutional. The effect of the trial court's declaration is to preclude the State from seeking the death penalty. For the reasons we explained in Jon es, the trial court is without authority to interfere with the state attorney's discre tion to seek the death penalty in that way at this phase of the case. 1 In addition to the prosecutorial discretion concerns that und ergird Jones, I also believe that an appropriate regard for the legislature's r ole in setting policy concerning the death penalty counsels in favor of deferring que stions of the type

1 I note that the supreme court's opinion in Perry involved order s that, like the orders in Jones, determined the applicability of the death penalty prior to the guiltphase trial of a capital case, yet the supreme court considered the merits of the constitutional arguments nonetheless. The supreme court accept ed jurisdiction in Perry to review certified questions concerning the scope of the Unite d States Supreme Court's decision in Hurst and the applicability of the March 2016 amend ments to section 921.141 to prosecutions pending at the time of their adoption; neither question involved a trial court's authority (or lack thereof) to make pretrial de terminations concerning the applicability of the death penalty. See 41 Fla. L. Weekly S449 . Moreover, the State's brief in Perry did not raise the issue of a trial court's autho rity to make determinations concerning the applicability of the death penalty prior to a gu ilt-phase trial verdict, and the supreme court's opinion does not address it. To conclude t hat Perry stands for the proposition that a trial court has such authority, one would ha ve to conclude that the supreme court, without saying so, resolved a question that was not presented by the case before it or briefed by the parties and resolved it in a w ay that would either conflict with or limit its decision in Bloom. I do not think such a con clusion is defensible.- 6 - reached by the trial court's order for the penalty phase of the proceedings. Whatever infirmities the Hurst decisions identified in the State's proce dure for deciding whether death is a proper sentence in an individual capital murder case , the people's representatives in the legislat ure have decided that death shou ld be available as a sentence for that offense. As it stands, our supreme court has determined that the legislature's prompt revisions to section 921.141 satisfy the H urst decisions in all but one respect—the requirement of jury unanimity. Perry, 41 Fla. L. Weekly at S453. It is possible that the legislature will act just as promptly to reso lve that remaining issue in an amended statute that, without violating the ex post facto claus es of the United States and Florida Constitutions, might be applied to pending cases be fore the guilt-phase

trials of this case and others are concluded. Orders that dete rmine the applicability of the death penalty before the defendant has been convicted of a capital offense and before it is legally necessary to do so undermine the legislatu re's expressed purpose that the State be permitted to seek, and the jury be permitted to consider, whether a sentence of death is proper if the State proves the defendant's guilt of the offense charged. The trial court's authority to enter the order at issue here is, however, not before us on this petition. For that reason, I concur in the c ourt's decision to deny it.