NOT FINAL UNTIL TIME EXPIRES 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. 
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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)—governing the procedures for 

determining whether to apply the death penalty—is unconstitutional. While the petition 

was pending, the supreme court decided Hurst, 202 So. 3d 40, and Perry, 41 Fla. L. 

Weekly S449. Those cases establish that section 921.141 is unconstitutional insofar as 

it permits imposition of a death sentence where "ten jurors recommend death as 

opposed to the constitutionally required unanimous, twelve-member jury." See Perry, 

41 Fla. L. Weekly at S453. Given that holding and the fact that 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 State v. Jones, 41 Fla. L. 

Weekly D1853 (Fla. 2d DCA Aug. 10, 2016), however, I write to express 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 capital offense that might 

subject him to that penalty. 

 A brief history of recent developments concerning Florida's death 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 established by sections 775.082(1) and 921.141(2) and (3), 

Florida Statutes (2010), unconstitutionally abridged the Sixth Amendment right to jury 

trial in criminal cases because they relegated critical sentencing determinations to the 

trial judge rather than the jury. The legislature quickly reacted and amended those 

statutes in March to provide the capital sentencing procedures currently on the books. 
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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 Eighth Amendment to the United 

States Constitution require that a jury's decisions on death penalty 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 amendments and held (1) 

that most of the provisions of the amended statutes were constitutional under Hurst but 

(2) that the amendment to section 921.141(2)(c) was unconstitutional 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 entered the order 

at issue here, our court decided Jones. There, we considered four 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 that the United States 

Supreme Court's decision in Hurst left the State without a constitutional procedure for 

imposing it. Jones, 41 Fla. L. Weekly at D1854. The State sought writs of prohibition to 

challenge the trial courts' authority to enter these orders, each of which had been 

entered before the guilt phase of trial based on a request by the defendant to preclude it 

from proceeding as a death case. 

 We granted the writs and held that a trial court has no authority to 

determine the applicability of the death penalty before a defendant has been tried and 

convicted of a capital offense. We emphasized that capital cases proceed first through 

a guilt phase and, if the defendant is convicted, to a penalty phase. The applicability of 
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the death penalty is determined at the penalty stage only if the defendant is convicted of 

a capital offense. We held that the decision to charge a defendant 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 attorney, 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 D1855. In so holding, we relied on the supreme court's 

decision in State v. Bloom, 497 So. 2d 2 (Fla. 1986), which held 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 the death penalty in a capital 

case. For that reason, we concluded in Jones that notwithstanding the 

unconstitutionality of the statutory 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." Jones, 41 Fla. L. Weekly 

at D1855. 

 To my mind, the trial court's order in this case interferes with the state 

attorney's prosecutorial discretion in capital cases in the same way that the orders in 

Jones did. The State charged Mr. Gonzalez in a two-count indictment 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 seeking a declaration that 

section 921.141 is unconstitutional insofar as it permits penalty-phase determinations to 

be made by something less than the unanimous vote of a twelve-member jury. There 

would be no reason for Mr. Gonzalez to seek that order other than to preclude the State 

from prosecuting the case as a felony for which he could be punished by death. 
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The court entered an order on Mr. Gonzalez's motion that declared section 

921.141 unconstitutional. Although the order does not explicitly 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 constitutionality of section 921.141, 

and it is difficult to see how the trial court could, for example, death qualify a trial jury 

after having decided that the statute 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 Jones, the trial court is 

without authority to interfere with the state attorney's discretion to seek the death 

penalty in that way at this phase of the case.1

 In addition to the prosecutorial discretion concerns that undergird Jones, I 

also believe that an appropriate regard for the legislature's role in setting policy 

concerning the death penalty counsels in favor of deferring questions of the type 

 1I note that the supreme court's opinion in Perry involved orders 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 accepted jurisdiction in Perry 

to review certified questions concerning the scope of the United States Supreme Court's 

decision in Hurst and the applicability of the March 2016 amendments 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 determinations 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 authority to make determinations 

concerning the applicability of the death penalty prior to a guilt-phase trial verdict, and 

the supreme court's opinion does not address it. To conclude that Perry stands for the 

proposition that a trial court has such authority, one would have 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 way that would either conflict 

with or limit its decision in Bloom. I do not think such a conclusion 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 procedure for deciding whether 

death is a proper sentence in an individual capital murder case, the people's 

representatives in the legislature have decided that death should 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 Hurst 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 resolve that remaining issue in an 

amended statute that, without violating the ex post facto clauses of the United States 

and Florida Constitutions, might be applied to pending cases before the guilt-phase 

trials of this case and others are concluded. Orders that determine 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 legislature'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 court's decision to deny it.