DISTRICT COURT OF APPEAL OF FLORIDA

SECOND DISTRICT

STATE OF FLORIDA,

Petitioner,

v.

McKINSIE LYONS,

Respondent.

No. 2D2023-2358

August 9, 2024

Petition for Writ of Certiorari to the Circuit Court for Hillsborough

County; Lyann Goudie, Judge.

Ashley Moody, Attorney General, Tallahassee, and Doris Meacham, 

Senior Assistant Attorney General, Daytona Beach, for Petitioner.

Daniel M. Hernandez of Daniel M. Hernandez, P.A., Tampa, for 

Respondent.

BLACK, Judge.

The State seeks certiorari review of the trial court's order granting 

McKinsie Lyons' motion to preclude application of section 921.141(2), 

Florida Statutes (2023), in this case. We grant the petition.

As relevant to the State's petition, Lyons was charged with two 

counts of capital felony murder in September 2018. Two months later 
2

the State filed its notice of intent to seek the death penalty. In July 

2023, following enactment of amendments to section 921.141, Lyons 

filed a motion seeking to prevent application of the 2023 version of 

section 921.141(2) to his case. Specifically, Lyons sought to preclude 

application of section 921.141(2)(c), which became effective in April 2023 

and requires the jury to recommend a sentence of death if eight or more 

jurors determine that death is the appropriate sentence. See ch. 2023-

23, § 1, Laws of Fla.1 The prior version of the statute, and the one that 

Lyons sought to have applied, required the jury to unanimously 

determine that death was the appropriate sentence before recommending 

a death sentence. See § 921.141(2), Fla. Stat. (2022); ch. 2017-1, § 1, 

Laws of Fla. On September 29, 2023, following a hearing, the trial court 

granted Lyons' motion. The court found that "retroactive application of 

the current version of section 921.141 to the instant case violates the Ex 

Post Facto Clauses of the United States and Florida Constitutions," and 

the court adopted the reasoning and analysis of a Tenth Judicial Circuit 

Court's order addressing the same issue.

2 In a footnote in its order, the 

court acknowledged the September 22, 2023, opinion of the Fifth District 

Court of Appeal in State v. Victorino (Victorino II), 372 So. 3d 772 (Fla. 5th 

DCA 2023), quashing a trial court order and concluding that the 2023 

1 In addition to removing the unanimity requirement for a death 

sentence recommendation, the 2023 amendment also added a sentence 

to subsection (3) of the statute, reiterating that the jury must 

unanimously find at least one aggravating factor in order for the 

defendant to be eligible for a sentence of death. Ch. 2023-23, § 1, Laws 

of Fla.; see also § 921.141(3), Fla. Stat. (2023). The unanimity 

requirement for aggravating factors is not at issue in this case.

2 That order has since been quashed. State v. Lobato, No. 6D2023-

3201, 2024 WL 2789409 (Fla. 6th DCA May 31, 2024).
3

amendment to section 921.141(2) is procedural and not an ex post facto 

law. However, the trial court determined that because the Victorino II

decision was not then final, it was not binding on the trial court. 

The effect of the order at issue is that the jury would be instructed 

that its "decision regarding the appropriate sentence must be unanimous 

if death is to be imposed." See Fla. Std. Jury Instr. (Crim.) 7.11 (2023). 

The State timely seeks certiorari review of this pretrial ruling. 

For a district court of appeal to grant a certiorari petition, the 

"petitioner must establish that an order of the lower tribunal (1) departed 

from the essential requirements of law, (2) causing a material injury that 

(3) is unable to be remedied via appeal." State v. Davis, 147 So. 3d 7, 9 

(Fla. 1st DCA 2013). "Courts consider in tandem whether the contested 

order would cause the petitioner material injury and whether the 

petitioner has an adequate remedy on appeal, referring to the combined 

question as whether the petitioner would suffer 'irreparable harm.' " 

State v. Garcia, 350 So. 3d 322, 325 (Fla. 2022). The irreparable harm 

question is jurisdictional, and we must address it first. See id.

"Irreparable harm in the criminal context, when the petition is 

brought by the State, is a unique issue due to the State's limited ability 

to appeal." State v. Milbry, 219 So. 3d 160, 161 (Fla. 5th DCA 2017) 

(citing State v. Pettis, 520 So. 2d 250, 253 (Fla. 1988)). Here, the State is 

correct that it has no independent remedy on appeal. Its ability to 

challenge the trial court's ruling other than through an extraordinary 

writ petition is contingent upon the defendant appealing the judgment. 

See State v. Martinez, 4 So. 3d 712, 713 n.1 (Fla. 4th DCA 2009) 

("[U]nless a defendant is convicted and files an appeal, the State cannot 

obtain review if, during trial, the trial court excludes critical State 

evidence or gives an incorrect jury instruction." (citing Fla. R. App. P. 
4

9.140(c)(1)(K))); see also Pettis, 520 So. 2d at 253 n.2 ("The defendant 

does not suffer the same prejudice [as the State does from erroneous 

pretrial rulings] because he always has the right of appeal from a 

conviction in which he can attack any erroneous interlocutory orders."). 

The State is also correct that under certain circumstances—which may 

not be known until the penalty phase is complete—the prohibition 

against double jeopardy prevents a defendant from being eligible for the 

death penalty if retried or resentenced. See D'Arcangelo v. State, 82 So. 

3d 1174, 1179-81 (Fla. 2d DCA 2012) (comparing and discussing the 

holdings of three United States Supreme Court decisions addressing 

exposure to the death penalty after retrial: Bullington v. Missouri, 451 

U.S. 430 (1981) (holding that a jury's verdict of life imprisonment barred 

the possibility of the death penalty at a retrial); Arizona v. Rumsey, 467 

U.S. 203 (1984) (barring death penalty on retrial when the trial judge in 

first trial sentenced defendant to life); and Sattazahn v. Pennsylvania, 

537 U.S. 101 (2003) (holding that a trial court's discharge of the jury 

after the jury failed to reach a unanimous decision as to the sentence 

and the court's entry of a life sentence did not bar the death penalty on 

retrial)); see also Victorino v. State (Victorino I), 241 So. 3d 48, 50 (Fla. 

2018) (finding meritless the claim that because jury recommendations for 

the death penalty were not unanimous, the defendant was "acquitted" of 

the death penalty such that the prohibition against double jeopardy 

prevented him from being eligible for a death sentence on retrial). 

It is well-settled that certiorari jurisdiction exists to review nonfinal 

orders that impair the State's ability to prosecute its case. Pettis, 520 So. 

2d at 253 ("If a nonfinal order does not involve one of the subjects 

enumerated in Florida Rule of Appellate Procedure 9.140(c)(1), the [S]tate 

would not be able to correct an erroneous and highly prejudicial ruling. 
5

Under such circumstances, the [S]tate could only proceed to trial with its 

ability to present the case significantly impaired."). The State's case may 

be impaired by orders impacting the guilt phase of a trial. See State v. 

Morgan, 171 So. 3d 210, 212-13 (Fla. 2d DCA 2015) (granting certiorari 

relief where "the exclusion from evidence of the audio recordings" would 

"hamstring, if not destroy, the State's case"); see generally State v. Storer, 

920 So. 2d 754, 758 (Fla. 2d DCA 2006) ("Since the Pettis decision, most 

opinions granting relief to the State have come in the context of 

challenges to orders that prevented the State from presenting evidence 

that was critical to its case."). And pretrial and other nonfinal rulings 

impacting the sentencing phase of trial may also satisfy the certiorari 

jurisdictional standard. See, e.g., Davis, 147 So. 3d at 9 (granting 

certiorari petition and quashing pretrial order amending a standard jury 

instruction regarding sentencing); State v. Matute-Chirinos, 732 So. 2d 

349, 349 (Fla. 3d DCA 1998) (concluding that it had jurisdiction to 

review State's certiorari petition seeking review of order declining to give 

jury instruction on aggravating circumstance and denying petition

because trial court did not depart from essential requirements of law); cf. 

Brown v. State, 521 So. 2d 110, 112 (Fla. 1988) ("Although the [S]tate 

might have sought interlocutory review by writ of certiorari after the 

ruling and prior to the imposition of the sentence on the grounds that 

the ruling was a departure from the essential requirements of law, and 

that imposition of sentence would cause irreparable harm under Arizona

v. Rumsey, 467 U.S. 203 (1984), and Bullington v. Missouri, 451 U.S. 430

(1981), it failed to do so." (citations omitted)); State v. Moss, 194 So. 3d 

402, 406 (Fla. 3d DCA 2016) (granting the State's petition for a writ of 

certiorari and reiterating that "the [S]tate has a legitimate interest in 

having a single jury at the guilt[] and penalty phases, as well as a 
6

legitimate interest in excluding from that jury persons who cannot fairly 

consider issues regarding a death sentence" and determining that "the 

State is legally entitled to question the venire members . . . and exclude 

from the jury those potential jurors whose prejudices and biases would 

prevent them from considering the death penalty" (citing Lockhart v. 

McCree, 476 U.S. 162, 175-82 (1986))). Moreover, in Victorino II, relied 

upon by the State, the Fifth District concluded that the jurisdictional 

prongs of the certiorari standard were met where the State challenged a 

trial court's order refusing to apply the 2023 version of section 921.141. 

372 So. 3d at 777.

3

Having concluded that the jurisdictional prongs of the certiorari 

standard are met, we next consider whether the trial court departed from 

the essential requirements of law in granting Lyons' motion and refusing 

to apply the 2023 version of section 921.141.

At the time the trial court entered its order, the Fifth District had 

issued its Victorino II opinion, addressing the 2023 amendment to section 

921.141.4 The law at the time the trial court rendered its decision was 

3 Additionally, in a single sentence opinion, the Florida Supreme 

Court denied the State's "petition for writ of certiorari challenging the 

trial court's decision granting a proposed penalty-phase instruction . . . 

because the State ha[d] not demonstrated that the order depart[ed] from 

'the essential requirements of the law.' " State v. Johnson, No. SC2019-

1994, 2020 WL 7693133, at *1 (Fla. Dec. 28, 2020). 

4 We note, however, that at the time the Tenth Judicial Circuit 

Court's order was rendered, Victorino II had not issued. Thus, in 

addressing whether the Tenth Judicial Circuit Court had departed from 

the essential requirements of law, the Sixth District was tasked with 

examining "the contours of the constitutional prohibition of ex post facto

laws." Lobato, 2024 WL 2789409, at *2. Because Victorino II had issued 

at the time the trial court in our case rendered its decision and we 

readily agree with its conclusion, as well as that of Lobato, we need not 
7

clear: "[T]he amendment to section 921.141 is a quintessentially 

procedural change that has no substantive effect. . . . '[I]t does not 

constitute an ex post facto law.' " Victorino II, 372 So. 3d at 778 (quoting 

Victorino I, 241 So. 3d at 50).5

"The decisions of the district courts of appeal represent the law of 

Florida unless and until they are overruled . . . ." Dep't of Highway 

Safety & Motor Vehicles v. Chakrin, 304 So. 3d 822, 829 (Fla. 2d DCA 

2020) (quoting Stanfill v. State, 384 So. 2d 141, 143 (Fla. 1980)). "The 

proper hierarchy of decisional holdings would demand that in the event 

the only case on point on a district level is from a district other than the 

one in which the trial court is located, the trial court be required to follow 

that decision." Id. at 830 (quoting Nader v. Dep't of Highway Safety & 

Motor Vehicles, 87 So. 3d 712, 724 (Fla. 2012)); see also Sys. Components 

Corp. v. Fla. Dep't of Transp., 14 So. 3d 967, 973 n.4 (Fla. 2009) ("[A] trial 

examine the contours of United States and Florida Constitutions' 

prohibitions against ex post facto laws.

5 The Florida Supreme Court had also addressed section 921.141 

in Victorino I and reiterated that "[f]or a criminal law to be ex post facto it 

must be retrospective, that is, it must apply to events that occurred 

before its enactment; and it must alter the definition of criminal conduct 

or increase the penalty by which a crime is punishable." 241 So. 3d at 

50 (emphasis added) (citing Lynce v. Mathis, 519 U.S. 433, 441 (1997)). 

The court then held that the 2017 version of the statute, requiring 

unanimity of the jurors to recommend death, "neither alter[ed] the 

definition of criminal conduct nor increase[d] the penalty by which the 

crime of first-degree murder is punishable." Id. Moreover, decades ago, 

in reviewing a previous iteration of Florida's death penalty, the United 

States Supreme Court held that a more substantial change in Florida's 

death penalty statute "was clearly procedural. The new statute simply 

altered the methods employed in determining whether the death penalty 

was to be imposed; there was no change in the quantum of punishment 

attached to the crime." Dobbert v. Florida, 432 U.S. 282, 293-94 (1977).
8

court may not overrule or recede from the controlling decision of a 

district court."). That a decision of the district court of appeal is not yet 

final when a trial court rules on an issue does not affect the binding 

nature of the appellate decision. See Kraay v. State, 148 So. 3d 789, 790 

(Fla. 1st DCA 2014) ("The trial court denied the motion, reasoning that it 

was not bound by [Weeks v. State, 39 Fla. L. Weekly D35 (Fla. 1st DCA 

Dec. 26, 2013),] because the decision was then pending on rehearing and 

thus was not yet final. . . . The reasoning underlying the trial court's 

ruling on the motion to dismiss was erroneous because Weeks was 

binding on the trial courts of this district from the date the opinion was 

issued."); see also Link v. State, 273 So. 3d 1115, 1116 (Fla. 3d DCA 

2019) ("The trial court is incorrect in its articulated belief that once the 

Supreme Court 'accepts jurisdiction th[e] [district court's] decision isn't 

really quite as binding.' " (second alteration in original)); Rock v. State, 

800 So. 2d 298, 299 (Fla. 3d DCA 2001) ("The State argues that [State v. 

Huggins, 802 So. 2d 276 (Fla. 2001),] should not be relied upon because 

the decision is not yet final since rehearing is pending before the Florida 

Supreme Court. Nonetheless, that decision controls until it is altered or 

overturned."); Philip J. Padovano, Florida Appellate Practice § 20.7 (2024 

ed.) ("The effective date of an appellate decision is the date appearing on 

the face of the decision, even though most decisions do not become final 

until after the time has expired for filing a motion for rehearing."). 

The trial court departed from the essential requirements of law by 

failing to apply binding precedent. See State v. Jones, 283 So. 3d 1259, 

1266 (Fla. 2d DCA 2019) ("The failure to apply a controlling legal decision 

is a classic departure from the essential requirements of the law."); see 

also Dep't of Highway Safety & Motor Vehicles v. Walsh, 204 So. 3d 169,

171 (Fla. 1st DCA 2016) (holding that the trial court's failure to follow a 
9

decision from the Second District Court of Appeal "was a profound error, 

amounting to a clear departure from the essential requirements of law 

because 'in the absence of interdistrict conflict, district court decisions 

bind all Florida trial courts' " (quoting Pardo v. State, 596 So. 2d 665, 

666 (Fla. 1992))). The State's petition for a writ of certiorari is granted, 

and the order precluding application of the 2023 version of section 

921.141(2) during Lyons' trial is quashed.

Petition granted; order quashed.

ROTHSTEIN-YOUAKIM and ATKINSON, JJ., Concur.

Opinion subject to revision prior to official publication.