# 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
S pencer. Spencer v. State , 645 So. 2d 377, 380 (Fla. 1994) , cert. denied , 522 U.S. 884 (1997). The jury recommen ded 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- 2

- aggravating facto r

— 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 reconsidera tion 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) ( sta ting 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 postco nviction 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- 3

- 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 (2 017).
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 conviction s 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 Eight h Amendment, equal protection, and due process require that Hurst be applied retroactiv ely 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. S pencer’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
Cour t.” Asay v. State , 224 So. 3d 695, 703 (Fla. 2017). And Spencer’s claim that- 4 - 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 retroac tively invalidate the jury instructions that were proper at the time under Florida law” (c iting Romano v. Oklahoma , 512 U.S. 1, 9 (1994)). Accordingly, we affirm the circuit court’s order summarily denying Spencer’s su ccessive motion for postconvictio n relief. It is so ordered. LEWIS, QUINCE, POLSTON, LABARG A, and LAWSON, JJ., concur. CANADY, C.J., concurs in result. PARIENTE, J., dissents with an opinion. ANY MOTION FOR REHEARING OR C LARIFICATION MUST BE FILED WITHIN SEVEN DAYS. A RE SPONSE TO THE MOTION FOR REHEARING/CLARIFICAT ION MAY BE FILED WITHIN FIVE DAYS AFTER THE FILING OF THE MOTION F OR REHEARING/CLARIFICATION. NOT FINAL UNTIL THIS TIME P ERIOD EXPIRES TO FILE A REHEARING/CLARIFICAT ION MOTION AND, IF FI LED, DETERMINED. PARIENTE, J., dissenting. I dissent. While I realize that t his 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).- 5 - unique factors in this case mand ate a new pena lty phase under Hurst

. 2 The most critical error was the complete a bsence of a jury in the last d etermination that Spencer should be sentenced to d eath after this Court struck th e aggravating factor that the murder was committed in a cold, calculated, and premed itated manner (CCP) and remanded for recons ideration by the trial judge. After the jury nonunanimously r ecommended a sentence of death b y a vote of seven to five—the barest of m ajority—this Court determined o n direct appeal that (1) the jury and trial j udge, in sentencing Spencer to dea th, improperly considered the aggravating factor of CCP, and (2) the trial cou rt 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 s tatutory mental mitigating cir cumstances of extreme disturbance and impaired capacity ,” this Court vacated Spencer’ s sentence of death and “remand[ed] th[e] case for r econsideration of the death sen tence 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 w ould further note that Spencer raised the unconstitutiona lity of Florida’s death penal ty 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 summari ly rejected that argument. Id.- 6 - Spencer , 645 So. 2d at 385. Despite clear precedent that this Court s hould have reviewed whether striking the CCP aggravator was harmless beyon d a reasonable doubt, 3 this Court did not and, instead of reversing for a new penalty phase in front of a jury, remanded for reconsid eration by the trial court alon e. See Spencer , 645 So. 2d at 384-85. After reviewing the evidence on remand, the trial judge again imposed death, finding two aggrav ating factors and three statut ory 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 te st is applied to determine whether there is no reasonable possibility that the e rror 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 fac tor is ‘one of the most serious aggravators set out in the statutor y 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 co nvicted 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 mit igating circumstances were “1) the murder was committe d while Spencer was under the i nfluence of extreme mental or emotional dist urbance; 2) Spencer’s capacity to appreciate the criminality of his conduct or to conform his conduct to the req uirements 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 pers onality disorder, sexua l abuse by his fathe r, honorable military record, good employment record, a nd ability to function in a st ructured environment that does not contain women.” Id. (citing § 921.141(6)(b), (f), Fla. Stat. (1993)).- 7 - Ironically, if this Court had reve rsed for a new penalty phase rather than remanding the case for “reconsider ation” 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 tria l by jury, as guaranteed by the United States and Florida Constitutions. For these reasons, I would grant Spence r a new penalty phase. Accordingly, I dissent. An Appeal from the Circuit Co urt in and for Orange County, A. James Craner, Judge - Case No. 481992CF000473000AOX Maria E. DeLiberato, Interim Capital Collateral Regional Counse l, Julissa R. Fontán and Chelsea R. Shirley, Assistant Capital Collateral Reg ional Counsel, Middle Region, Temple Terrace, Florida, for Appellant Pamela Jo Bondi, Attorney Genera l, Tallahassee, Florida, and Sc ott 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 wa s originally sentenced to deat h 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).- 8 - for Appellee