Supreme Court of Florida ____________

No. SC17-1269

____________

DUSTY RAY SPENCER,

Appellant,

vs.

STATE OF FLORIDA,

Appellee.

November 8, 2018

PER CURIAM.

Dusty Ray Spencer, a prisoner under sentence of death, appeals the circuit 

court’s order summarily denying his successive motion for postconviction relief, 

which was filed under Florida Rule of Criminal Procedure 3.851. We have 

jurisdiction. See art. V, § 3(b)(1), Fla. Const.

Spencer was convicted of the 1992 first-degree murder of his wife, Karen 

Spencer. Spencer v. State, 645 So. 2d 377, 380 (Fla. 1994), cert. denied, 522 U.S. 

884 (1997). The jury recommended a death sentence by a seven to five vote, and 

the trial judge followed the jury’s recommendation and imposed a sentence of

death. Id. We affirmed Spencer’s conviction on direct appeal. Id. at 383. As to 

the death sentence, we concluded that the trial court improperly found an 
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aggravating factor—that the murder was cold, calculated, and premeditated—and 

improperly failed to consider the statutory mental mitigating circumstances of 

extreme disturbance and impaired capacity; thus, we vacated the death sentence 

and remanded the case for reconsideration of the sentence by the judge. Id. at 385. 

On remand, the trial court again imposed a sentence of death, and we affirmed the 

sentence. Spencer v. State, 691 So. 2d 1062, 1063, 1066 (Fla. 1996), cert. denied, 

522 U.S. 884 (1997). Spencer’s sentence became final in 1997 when the United 

States Supreme Court denied certiorari review. See Fla. R. Crim. P. 3.851(d)(1)(B) 

(stating that for the purposes of filing postconviction claims under rule 3.851, a 

judgment and sentence become final “on the disposition of the petition for writ of 

certiorari by the United States Supreme Court, if filed”).

In 2003, we affirmed the denial of Spencer’s initial motion for 

postconviction relief and denied his petition for a writ of habeas corpus. Spencer 

v. State, 842 So. 2d 52, 58 (Fla. 2003). In 2009, we affirmed the summary denial 

of Spencer’s first successive motion for postconviction relief. Spencer v. State, 23 

So. 3d 712 (Fla. 2009) (table). In January 2017, Spencer filed a successive motion 

to vacate his death sentence in light of Hurst v. Florida, 136 S. Ct. 616 (2016), and 

Hurst v. State (Hurst), 202 So. 3d 40 (Fla. 2016), cert. denied, 137 S. Ct. 2161

(2017). In April 2017, the circuit court summarily denied the motion. This appeal 

follows. During the pendency of this case in this Court, we directed the parties to 
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file briefs addressing why the circuit court’s order should not be affirmed based on 

our precedent in Hitchcock v. State, 226 So. 3d 216, 217 (Fla.), cert. denied, 138 S. 

Ct. 513 (2017).

In Hitchcock, we held that “our decision in Asay [v. State, 210 So. 3d 1, 22 

(Fla. 2016), cert. denied, 138 S. Ct. 41 (2017),] forecloses relief” under Hurst for 

defendants whose convictions and sentences were final prior to the United States 

Supreme Court’s decision in Ring v. Arizona, 536 U.S. 584 (2002). See also 

Lambrix v. State, 227 So. 3d 112, 113 (Fla.) (rejecting Lambrix’s argument that the 

Eighth Amendment, equal protection, and due process require that Hurst be 

applied retroactively to Lambrix even though his sentences were final prior to 

Ring), cert. denied, 138 S. Ct. 312 (2017). Thus, because his sentence became 

final prior to Ring, Spencer is not entitled to Hurst relief.

Nor is Spencer entitled to relief on his other claims. Spencer’s claim that he 

should have been entitled to have a jury reweigh the aggravation and mitigation 

when his case was remanded for reconsideration of the sentence by the trial judge 

in 1994 is untimely and procedurally barred. Spencer’s assertion that his death 

sentence cannot withstand Eighth Amendment scrutiny because this Court’s refusal 

to grant him Hurst relief is arbitrary and capricious does not present a basis for 

relief. This “argument is not novel and has been previously rejected by this 

Court.” Asay v. State, 224 So. 3d 695, 703 (Fla. 2017). And Spencer’s claim that 
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his death sentence violates Caldwell v. Mississippi, 472 U.S. 320 (1985), and the 

Eighth Amendment is foreclosed by our recent decision in Reynolds v. State, 251 

So. 3d 811, 825 (Fla. 2018), petition for cert. filed, No. 18-5181 (U.S. July 3, 

2018), in which we held that “a Caldwell claim based on the rights announced in 

Hurst and Hurst v. Florida cannot be used to retroactively invalidate the jury 

instructions that were proper at the time under Florida law” (citing Romano v. 

Oklahoma, 512 U.S. 1, 9 (1994)). Accordingly, we affirm the circuit court’s order 

summarily denying Spencer’s successive motion for postconviction relief. 

It is so ordered. 

LEWIS, QUINCE, POLSTON, LABARGA, and LAWSON, JJ., concur. 

CANADY, C.J., concurs in result. 

PARIENTE, J., dissents with an opinion. 

ANY MOTION FOR REHEARING OR CLARIFICATION MUST BE FILED 

WITHIN SEVEN DAYS. A RESPONSE TO THE MOTION FOR 

REHEARING/CLARIFICATION MAY BE FILED WITHIN FIVE DAYS 

AFTER THE FILING OF THE MOTION FOR REHEARING/CLARIFICATION. 

NOT FINAL UNTIL THIS TIME PERIOD EXPIRES TO FILE A 

REHEARING/CLARIFICATION MOTION AND, IF FILED, DETERMINED. 

PARIENTE, J., dissenting. 

I dissent. While I realize that this Court’s precedent directs us to affirm 

Spencer’s death sentence,1 in my view, the combination of several critical and 

 

 1. See Hitchcock v. State, 226 So. 3d 216 (Fla.), cert. denied, 138 S. Ct. 513 

(2017); Asay v. State (Asay V), 210 So. 3d 1 (Fla. 2016), cert. denied, 138 S. Ct. 41 

(2017); Mosley v. State, 209 So. 3d 1248 (Fla. 2016). 
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unique factors in this case mandate a new penalty phase under Hurst.

2

 The most 

critical error was the complete absence of a jury in the last determination that 

Spencer should be sentenced to death after this Court struck the aggravating factor 

that the murder was committed in a cold, calculated, and premeditated manner 

(CCP) and remanded for reconsideration by the trial judge. 

After the jury nonunanimously recommended a sentence of death by a vote 

of seven to five—the barest of majority—this Court determined on direct appeal 

that (1) the jury and trial judge, in sentencing Spencer to death, improperly 

considered the aggravating factor of CCP, and (2) the trial court improperly failed 

to consider statutory mitigation in sentencing Spencer to death. See Spencer v. 

State, 691 So. 2d 1062, 1063 (Fla. 1996); Spencer v. State, 645 So. 2d 377, 384 

(Fla. 1994). 

Based on this Court’s “rejection of the CCP aggravating factor and the trial 

court’s failure to consider the statutory mental mitigating circumstances of extreme 

disturbance and impaired capacity,” this Court vacated Spencer’s sentence of death 

and “remand[ed] th[e] case for reconsideration of the death sentence by the judge.” 

 

 2. Hurst v. State (Hurst), 202 So. 3d 40 (Fla. 2016), cert. denied, 137 S. Ct. 

2161 (2017); see Hurst v. Florida, 136 S. Ct. 616 (2016). I would further note that 

Spencer raised the unconstitutionality of Florida’s death penalty on direct appeal in 

1994—years before Ring—arguing that “Florida’s death penalty is 

unconstitutional.” Spencer v. State, 645 So. 2d 377, 384 (1994). Without 

discussion, this Court summarily rejected that argument. Id. 
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Spencer, 645 So. 2d at 385. Despite clear precedent that this Court should have 

reviewed whether striking the CCP aggravator was harmless beyond a reasonable 

doubt,3

 this Court did not and, instead of reversing for a new penalty phase in front 

of a jury, remanded for reconsideration by the trial court alone. See Spencer, 645 

So. 2d at 384-85. After reviewing the evidence on remand, the trial judge again 

imposed death, finding two aggravating factors and three statutory mitigating 

circumstances. Spencer, 691 So. 2d at 1063.4

 

 

 3. Williams v. State, 967 So. 2d 735, 765 (Fla. 2007) (“When this Court 

strikes an aggravating factor on appeal, ‘the harmless error test is applied to 

determine whether there is no reasonable possibility that the error affected the 

sentence.’ ” (quoting Jennings v. State, 782 So. 2d 853, 863 n.9 (Fla. 2001))); see 

Wood v. State, 209 So. 3d 1217, 1229 (Fla. 2017) (“[T]he CCP aggravating factor 

is ‘one of the most serious aggravators set out in the statutory scheme.’ ” (quoting 

Silvia v. State, 60 So. 3d 959, 974 (Fla. 2011))); id. at 1233-34; Mahn v. State, 714 

So. 2d 391, 398-99 (Fla. 1998). 

 4. The aggravating factors were “1) Spencer was previously convicted of a 

violent felony, based upon his contemporaneous convictions for aggravated 

assault, aggravated battery, and attempted second-degree murder; and 2) the 

murder was especially heinous, atrocious, or cruel (HAC).” Spencer, 691 So. 2d at 

1063 (citing § 921.141(5)(b), (h), Fla. Stat. (1993)). The mitigating circumstances 

were “1) the murder was committed while Spencer was under the influence of 

extreme mental or emotional disturbance; 2) Spencer’s capacity to appreciate the 

criminality of his conduct or to conform his conduct to the requirements of law 

was substantially impaired; and 3) the existence of a number of nonstatutory 

mitigating factors in Spencer’s background, including drug and alcohol 

abuse, paranoid personality disorder, sexual abuse by his father, honorable military 

record, good employment record, and ability to function in a structured 

environment that does not contain women.” Id. (citing § 921.141(6)(b), (f), Fla. 

Stat. (1993)). 
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Ironically, if this Court had reversed for a new penalty phase rather than 

remanding the case for “reconsideration” of the aggravation and mitigation by the 

trial court, Spencer might be entitled to Hurst relief. By the time the case came 

back to this Court after a new penalty phase (assuming the jury’s recommendation 

was nonunanimous), Spencer would have likely been entitled to a new penalty 

phase pursuant to Hurst under Mosley v. State, 209 So. 3d 1248, 1283 (Fla. 2016).5

 

Spencer’s case involves the quintessential Hurst error—a defendant being 

sentenced to death without trial by jury, as guaranteed by the United States and 

Florida Constitutions. For these reasons, I would grant Spencer a new penalty 

phase. 

Accordingly, I dissent. 

An Appeal from the Circuit Court in and for Orange County, 

A. James Craner, Judge - Case No. 481992CF000473000AOX 

Maria E. DeLiberato, Interim Capital Collateral Regional Counsel, Julissa R. 

Fontán and Chelsea R. Shirley, Assistant Capital Collateral Regional Counsel, 

Middle Region, Temple Terrace, Florida, 

 for Appellant 

Pamela Jo Bondi, Attorney General, Tallahassee, Florida, and Scott A. Browne, 

Senior Assistant Attorney General, Tampa, Florida, 

 

 5. For example, James Card committed the crimes for which he was 

sentenced to death in 1981 and was originally sentenced to death in 1984—years 

before Spencer. See Card v. State, 803 So. 2d 613, 617 (Fla. 2001). However, 

because this Court granted Card a resentencing, his sentence of death did not 

become final until after Ring v. Arizona, 536 U.S. 584 (2002), and he was granted 

Hurst relief. Card v. Jones, 219 So. 3d 47 (Fla. 2017).
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 for Appellee