Supreme Court of Florida

____________

No. SC15-258

____________

NELSON SERRANO, 

Appellant,

vs.

STATE OF FLORIDA, 

Appellee.

____________

No. SC15-2005

____________

NELSON SERRANO, 

Petitioner,

vs.

JULIE L. JONES, etc., 

Respondent.

[May 11, 2017]

PER CURIAM.

Nelson Serrano appeals the denial of his postconviction motion filed under 

Florida Rule of Criminal Procedure 3.851 and petitions this Court for a writ of 
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habeas corpus.1 For the following reasons, we affirm the denial of his guilt phase 

postconviction claims, deny his habeas petition, but vacate his sentences, and 

remand for a new penalty phase.

I. BACKGROUND

In 2011, this Court affirmed Serrano’s four convictions for first-degree 

murder and his four death sentences. Serrano v. State, 64 So. 3d 93 (Fla. 2011). 

This Court explained the background of the case and murders as follows:

On May 17, 2001, Nelson Serrano was indicted under seal on 

four counts of first-degree murder for the deaths of George Gonsalves, 

Frank Dosso, Diane Patisso, and George Patisso. The murders 

occurred on December 3, 1997, at Erie Manufacturing and Garment 

Conveyor Systems in Bartow. George Gonsalves was one of 

Serrano’s business partners. And Frank Dosso, Diane Patisso, and 

George Patisso were respectively the son, daughter, and son-in-law of 

Serrano’s other business partner, Felice (Phil) Dosso. Serrano, a dual 

citizen of the United States and Ecuador, was arrested in Ecuador on 

August 31, 2002, and brought to the United States.

At the guilt phase, which occurred in 2006, the State presented 

the following evidence. In the 1960s, Phil Dosso and George 

Gonsalves started a tool and die business, Erie Manufacturing 

Cooperative, in New York. Their business provided parts to support 

the garment industry. In the 1980s, Phil Dosso and George Gonsalves 

met Nelson Serrano, who was working for a New Jersey company 

selling slick rail systems for the garment industry. In the middle of 

the 1980s, the three men created a separate company, Garment 

Conveyor Systems. Serrano was responsible for designing, selling, 

and installing slick rail systems, while Dosso and Gonsalves built the 

parts.

 

1. We have jurisdiction. See art. V, § 3(b)(1), (9), Fla. Const. Because we 

are remanding for a new penalty phase, we do not address Serrano’s penalty phase 

claims.
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In the late 1980s, the partners moved the business to Bartow, 

Florida. At that time, they closed Erie Manufacturing Cooperative 

and transferred all the assets to Erie Manufacturing, Inc. As part of 

their oral agreement, Serrano bought into the Erie partnership and 

agreed to pay Phil Dosso and George Gonsalves $75,000 each. 

Therefore, all three men were equal partners in both Garment 

Conveyor Systems and Erie Manufacturing. Garment moved to 

Bartow as well. Serrano’s son, Francisco Serrano, began working at 

the business soon after they relocated to Bartow, and Phil Dosso’s 

son, Frank Dosso, began working there at a later date. Phil Dosso’s 

son-in-law, George Patisso, was also an employee of the business.

By the early 1990s, the business was doing well. However, 

friction between the three partners had developed. Nelson Serrano 

had failed to pay the $75,000 to each of his partners. Further, there 

were disagreements about the distribution of assets and accusations 

that there were two sets of books. Then, in the summer of 1997, Phil 

Dosso and George Gonsalves fired Francisco Serrano. Also in the 

summer of 1997, Nelson Serrano opened a separate business checking 

account with a different bank and deposited two Erie checks totaling 

over $200,000. And Serrano instituted a civil suit against his partners. 

Ultimately, Serrano was removed as president by a vote of the other 

two partners, and the locks were changed on the building.

Numerous Erie employees testified to the strained relations 

between Serrano and the other two partners, particularly Serrano’s 

dislike of Gonsalves. Serrano made statements indicating that he 

wished Gonsalves were deceased. Additionally, Phil Dosso testified 

to hearing Serrano state that he felt like killing Gonsalves.

On the evening of the murders, most Erie employees left work 

at 5 p.m. or shortly thereafter. However, as was his usual practice, 

George Gonsalves worked late. David Catalan, an employee at Erie, 

testified that when he left with another employee shortly after 5 p.m. 

George Gonsalves’ car was the only car in the parking lot. Although 

George Patisso and Frank Dosso remained at Erie with Gonsalves, 

they did not have a car parked in front because George Patisso’s wife, 

Diane Patisso, had plans to pick them up and take them to Frank 

Dosso’s home for a family birthday party.

When family members began calling Frank Dosso and could 

not get an answer, Phil Dosso and his wife decided to drive to Erie. 

As Phil and Nicoletta Dosso entered Erie’s unlocked front door, they 

discovered the deceased body of their daughter, Diane Patisso. Phil 
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Dosso called 911 and ran to Frank Dosso’s office, where he 

discovered the bodies of George Gonsalves, George Patisso, and 

Frank Dosso.

When the first law enforcement officers arrived at the scene at 

7:36 p.m., there were only three cars parked in front of the entrance: 

Phil Dosso’s car, Diane Patisso’s car, and George Gonsalves’ car. 

Inside Erie, law enforcement discovered twelve shell casings, eleven 

from a .22 and one from a .32. All of the victims had been shot in the 

head with .22 bullets, and Diane Patisso was also shot once with a .32 

bullet. The three men were shot execution-style. While neither 

murder weapon was ever located, the State introduced evidence that 

Serrano possessed and owned multiple .22 and .32 caliber firearms.

In the office containing the three male victims, officers 

discovered a blue vinyl chair with shoe impressions on the seat. 

Directly above the chair, a ceiling tile had been dislodged. Although 

this office was Frank Dosso’s office at the time of the murders, it had 

been Nelson Serrano’s office when he worked at Erie. David Catalan 

testified that on one occasion, he saw Serrano in his office with a gun. 

Serrano was standing on a chair, moving a ceiling tile, and taking 

papers out of the ceiling. Further, Erie employee Velma Ellis testified 

that the blue chair in Frank Dosso’s office was never used and always 

remained under a desk in the office and that there were papers and a 

box piled on top of the chair’s seat. Ellis testified that the chair was in 

its usual position under the desk when she left work on December 3, 

1997, at 5 p.m. Crime analysts tested the shoe impressions on the 

dusty seat of the blue vinyl chair and found that the class 

characteristics and wear pattern were consistent with a pair of shoes 

Serrano owned and later loaned to a nephew.

The State’s theory at trial was that Serrano kept a .32 caliber 

firearm hidden in the ceiling of his office. Once he was ousted from 

the company and the locks were changed he was unable to retrieve the 

gun until the night of the murders. After Serrano had shot the three 

male victims in his former office and was leaving the scene, Diane 

Patisso entered the building and was shot with both a .22 and the 

retrieved .32. An FDLE agent testified that Serrano told the agent that 

he would hide a gun in the ceiling of his office when he was out of 

town on business. However, Serrano’s fingerprints and DNA were 

not discovered at the crime scene.

When officers first discovered the four victims at Erie, their 

investigation immediately focused on Serrano. As soon as Serrano 
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returned to his home from a business trip to Atlanta on December 4, 

1997, detectives requested that he come to the police station for an 

interview. At the police station, Serrano told law enforcement about

his problems with his partners and explained to the detective that he 

had learned of the murders the previous evening when he had called 

his wife from his Atlanta hotel.

During his interview with law enforcement, Serrano detailed his 

business trip itinerary, which included leaving Lakeland early on the 

morning of December 2, flying from Orlando to Washington, D.C., 

and, on the evening of December 2, flying from Washington to 

Atlanta. Serrano indicated that he remained in Atlanta until 

December 4, 1997. When asked by the detective what he thought may 

have happened at Erie, Serrano replied that “somebody is getting 

even; somebody they cheated, and George is capable of that.” 

Thereafter, the detective took Serrano’s taped statement, which was 

played for the jury. During his taped statement, Serrano stated that 

maybe Diane Patisso “walked in the middle of something.”

Officers traveled to Atlanta to investigate Serrano’s alibi and 

met with Larry Heflin of Astechnologies regarding his business 

meeting with Serrano. Heflin testified that he met Serrano in Atlanta 

on December 3 at about 9:45 a.m., and the meeting lasted 

approximately one hour. Investigators also obtained the La Quinta 

Inn airport hotel’s surveillance videotapes. The video showed Serrano 

in the Atlanta hotel lobby at 12:19 p.m. on December 3. Ten hours 

later, at 10:17 p.m., Serrano was again seen on the video, entering the 

hotel lobby from the outside, wearing the same sweater and jacket as 

earlier in the afternoon.

Alvaro Penaherrera, Serrano’s nephew, testified that on two 

separate occasions Serrano asked Penaherrera to rent a car for him so 

that Serrano’s wife would not find out about the rentals. On October 

29, 1997, Serrano drove Penaherrera to the Orlando airport, where 

Penaherrera picked up a rental car. Penaherrera then drove the car 

and left it at a nearby valet lot. Thereafter, Serrano drove Penaherrera 

back to his apartment. Penaherrera had no further contact with the 

rental car and did not know who returned it on October 31, 1997, at 

7:30 p.m.

Around Thanksgiving 1997, Serrano again asked Penaherrera to 

rent a car for him under Penaherrera’s name because Serrano had a 

girlfriend from Brazil coming into town. On November 23, 1997, 

Penaherrera made a telephone reservation for a rental car for 
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December 3, 1997. On December 3, 1997, at 7:53 a.m., Serrano 

called Penaherrera from Atlanta and asked him to call to confirm the 

rental car reservation. Serrano called Penaherrera back at 8:06 a.m. to 

verify that the rental car would be ready. Penaherrera then drove to 

Orlando’s airport and parked his car in the parking garage, rented the 

car from the terminal dealership, and drove the rental car back to the 

Orlando airport parking garage, where he left it as his uncle requested. 

Later that day, Serrano called Penaherrera, and Penaherrera told 

Serrano where the car was located and where the keys were hidden.

As on the previous occasion in October, Penaherrera did not 

expect to have any further involvement with the rental car after he left 

it at the Orlando airport parking garage on December 3. However, 

Serrano called Penaherrera the next day, December 4, to tell 

Penaherrera that the rental car was in Tampa, not Orlando, and that 

Penaherrera needed to drive to Tampa and return the car there. 

Serrano told Penaherrera if he went to Tampa and returned the car, 

Serrano would pay off Penaherrera’s credit card bill and Penaherrera 

could pay him back without interest. Penaherrera agreed to this 

arrangement and returned the rental car in Tampa at 2:10 p.m. on 

December 4, 1997. Gustavo Concha, Serrano’s friend and 

Penaherrera’s godfather, subsequently paid Penaherrera’s Visa bill.

Penaherrera next saw Serrano when he was visiting relatives in 

Ecuador for Christmas of 1997. Serrano informed Penaherrera of the 

murders at Erie and told Penaherrera that he could not say anything 

about the rental cars because it would jeopardize his marriage and the 

police would frame him for the murders.

In June 2000, Penaherrera, his girlfriend, and his brother were 

subpoenaed to testify before the grand jury. The three spent the night 

at Serrano’s house the night before their testimony. That night 

Serrano asked Penaherrera to tell the grand jury that he had rented the 

car for a friend with whom he had subsequently lost contact. Serrano 

also gave Penaherrera and his brother suits and dress shoes to wear to 

court. The pair of shoes that Serrano gave Penaherrera were seized by 

law enforcement, and subsequent testing indicated that the right shoe 

was consistent with the impression on the seat of the blue chair at the 

murder scene.

Also in June 2000, Penaherrera spoke for the first time with law 

enforcement regarding the December 1997 rental car transaction. And 

after his testimony and discussions with law enforcement, Penaherrera 

returned home to Orlando, where Serrano contacted him to find out 
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what information he had given to the grand jury and law enforcement. 

After Penaherrera testified before the grand jury, Serrano sold his 

home, car, and other assets and moved to Ecuador.

The State introduced evidence regarding Serrano’s air travel for 

his December 1997 business trip. As explained previously, Serrano 

flew from Orlando to Washington, D.C., and then to Atlanta, on 

December 2, 1997. However, contrary to his statements to law 

enforcement, the State also introduced evidence that Serrano traveled 

back to Florida on the day of the murders using two aliases. The State 

theorized that on the day of the murders Serrano flew from Atlanta to 

Orlando under the name Juan Agacio. Serrano then drove the car 

rented by Penaherrera on December 3 from the Orlando airport to 

Bartow, where he killed the four victims. Thereafter, he immediately 

drove the rental car to the Tampa airport, where he departed on a 

flight back to Atlanta using the alias John White.

To support its theory and timeline of Serrano’s activities on the 

day of the murders, the State introduced the videotape evidence 

demonstrating that Serrano was in the La Quinta Inn’s lobby in 

Atlanta shortly after noon on December 3, 1997. According to 

Serrano, he returned to his hotel room for the next ten hours because 

he was suffering from a migraine headache. However, the State 

introduced evidence that at 1:36 p.m. on December 3 a passenger 

calling himself Juan Agacio boarded Delta flight 1807 in Atlanta, 

scheduled to depart at 1:41 p.m. for Orlando. At 3:05 p.m., the 

passenger purporting to be Juan Agacio arrived in Orlando on flight 

1807, and at 3:49 p.m., the rental car that Penaherrera had rented 

exited the Orlando parking garage.

Serrano’s fingerprint was located on the parking garage ticket, 

indicating that Serrano departed from the Orlando airport garage at 

3:49 p.m. on December 3, 1997. And Serrano has a son, who was 

named Juan Carlos Serrano at birth and whose mother’s maiden name 

is Gladys Agacio. Additionally, the round-trip ticket for the Atlanta–

to–Orlando flight of the passenger flying under the name Juan Agacio 

was purchased with cash at the Orlando airport on November 23, 

1997, which is the same date that Penaherrera reserved the rental car 

for December 3, 1997. The State also introduced evidence that 

Serrano’s vehicle left the Orlando airport’s parking garage about 

twenty minutes after the passenger traveling under the name Juan 

Agacio purchased his ticket. The return portion of the flight was 

never used.
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At approximately 5:30 p.m. on December 3, 1997, a person was 

seen standing off the side of the road near Erie’s building. When John 

Purvis left work on December 3, 1997, he noticed the man wearing a 

suit standing in the grassy area with no car in the vicinity. The man 

was holding his coat and hands in front of his face as if he were 

lighting a cigarette. Both Alvaro Penaherrera and Maureen Serrano 

testified that Serrano smoked, but they did not testify that he

specifically smoked cigarettes. Purvis described the man, and law 

enforcement made a composite sketch that was shown to the jury.

Approximately two hours after the murders, at 7:28 p.m., the 

passenger flying under the name John White arrived at Tampa 

International Airport and checked into Delta Airlines for flight 1272 

to Atlanta. Similar to the purchasing process for the ticket in the 

name of Juan Agacio, the purchaser paid for a round-trip ticket at 

Tampa International Airport on November 23, 1997, and never used 

the return portion of the ticket. Flight 1272 was scheduled to arrive in 

Atlanta at 9:41 p.m.

At 10:17 p.m., Serrano was observed in Atlanta on videotape 

walking into the La Quinta Inn airport hotel lobby from the outside, 

wearing the same clothes he had been wearing ten hours earlier. After 

being observed in the hotel lobby, Serrano used his cell phone to call 

various individuals, including his wife. The next morning he made 

multiple calls to Alvaro Penaherrera telling him he had to return the 

rental car that was now located at Tampa airport.

Furthermore, the State presented evidence that the car rented by 

Penaherrera on December 3 had been driven 139 miles. The distance 

from the Orlando airport to Erie is eighty miles, and the distance from

Erie to the Tampa airport is fifty miles, totaling 130 miles.

While incarcerated awaiting trial, Serrano spoke to fellow 

inmate and “jailhouse lawyer,” Leslie Todd Jones, about his case. 

Serrano denied any involvement in the murders, telling Jones that he 

believed a mafia hitman may have committed the murders, or 

alternatively, that Frank Dosso wanted to take over the business from 

George Gonsalves. The main theory Serrano described involved a 

hitman Serrano knew only as John, who was owed a substantial 

amount of money by the Dosso and Gonsalves families. Serrano 

explained to Jones that he and the hitman drove to the airports in 

Tampa and Orlando and that John purchased tickets under the names 

of Todd White and Juan Agacio. Serrano told Jones that the hitman 

had planned to approach the business partners on Halloween night, 
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but it was raining and the business was closed. Serrano also told 

Jones about his fingerprint being found on a parking ticket in Orlando, 

but Serrano claimed that an FDLE agent had planted his fingerprint.

After law enforcement learned about the Halloween incident 

from inmate Jones, they began investigating and discovered almost an 

identical pattern of travel as the travel surrounding the December 3, 

1997, murders. Serrano once again was traveling on a business trip 

from Orlando to Charlotte from October 30 to November 2, 1997. 

And as previously discussed, on October 29, Serrano took Alvaro 

Penaherrera to the Orlando airport, where Penaherrera rented a car for 

Serrano and left it at a nearby valet lot. The next morning, October 

30, 1997, Serrano flew from Orlando to Charlotte with his flight 

arriving in Charlotte at 8:34 a.m. The following day, Halloween, 

someone traveling under the name Juan Agacio took a flight departing 

from Charlotte at 1:40 p.m. and arriving in Orlando at 3:07 p.m. At 

7:30 p.m., a passenger identified as John White was scheduled to 

depart on a flight from Tampa to Charlotte.

During the guilt phase, the defense maintained that Serrano had 

been in an Atlanta hotel room with a migraine at the time of the 

murders. The defense emphasized that no forensic evidence linked 

Serrano to the scene of the crimes. The defense also pointed out that 

there was evidence of robbery at the scene as several offices were in 

disarray, Frank Dosso’s Rolex watch was missing, and George 

Patisso’s gold chain was missing. However, the jury returned a 

verdict finding Serrano guilty on four counts of first-degree murder.

At the penalty phase, the State presented victim impact 

statements, and the parties stipulated that Serrano was fifty-nine years 

of age at the time of the murders and that Serrano had no prior 

criminal history. The defense presented evidence that Serrano never 

received any disciplinary reports while incarcerated awaiting trial. 

The jury recommended a sentence of death by a vote of nine to three 

for each of the four murder counts.

At the Spencer hearing, Serrano presented numerous witnesses, 

some of whom testified by videotape from Ecuador. Then, on June 

26, 2007, the trial court sentenced Serrano to death for each of the 

four murders. 
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Id. at 98-103 (footnote omitted).

2

On direct appeal, this Court affirmed Serrano’s convictions and sentences, 

rejecting the nine issues raised by Serrano and finding the death sentences 

proportionate.3

 

2. “The trial court found the following aggravators in regards to all four 

murders: (1) the murders were committed in a cold, calculated, and premeditated 

manner (great weight); and (2) Serrano was convicted of other capital felonies (the 

contemporaneous murders) (great weight). The trial court also found that the 

murder of Diane Patisso was committed for the purpose of avoiding arrest (great 

weight). Additionally, the trial court found the following mitigators: (1) Serrano 

had no significant history of prior criminal activity (great weight); (2) Serrano was 

in his late fifties at the time of the crimes (some moderate weight); (3) Serrano 

performed well in school (moderate weight); (4) Serrano has a good social history 

(moderate weight); (5) Serrano had no history of drug or alcohol abuse (some 

weight); (6) Serrano was a successful Hispanic immigrant (moderate weight); (7) 

Serrano displayed positive behavior during his pretrial incarceration (some 

weight); (8) Serrano displayed positive behavior during his court appearances 

(some weight); (9) Serrano expressed remorse regarding the death of Diane Patisso 

(slight weight); (10) Serrano had a good employment history (some weight); (11) 

Serrano was a good husband (some weight); (12) he was a good father (some 

weight); (13) Serrano was positively involved in his religion (some weight); and 

(14) he had a significant history of good works (moderate weight).” Serrano, 64 

So. 3d at 103.

3. Serrano raised the following on direct appeal: “(1) whether the 

circumstantial evidence is sufficient to support his convictions; (2) whether 

Serrano’s statements to FDLE Agent Tommy Ray were admissible; (3) whether the 

trial court properly denied Serrano’s motions to dismiss the indictment and divest 

itself of jurisdiction; (4) whether the prosecutor engaged in misconduct that entitles 

Serrano to relief; (5) whether the trial court properly denied Serrano’s motion for a 

change of venue; (6) whether the testimony of the State’s bloodstain pattern expert 

was admissible; (7) whether the State improperly cross-examined Serrano’s 

character witnesses about collateral crimes at the Spencer hearing; (8) whether the 
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Thereafter, Serrano filed a motion for postconviction relief and several 

amendments. During postconviction proceedings, Serrano obtained STR DNA 

testing of a plastic glove discovered at the crime scene under Diane Patisso’s body 

as well as STR DNA testing of two cigarette butts located in Erie’s parking lot. 

Serrano also obtained a postconviction order requiring fingerprint comparisons of 

several unknown fingerprints discovered at the crime scene, but the postconviction 

claim relating to the fingerprints was withdrawn after Serrano’s fingerprint was 

subsequently identified on a piece of paper that had been discovered near one of 

the victim’s body. 

After holding an evidentiary hearing in May 2014, the trial court denied 

Serrano’s motion for postconviction relief. This appeal and habeas petition 

followed. 

I. ANALYSIS

A. Letters

Serrano alleges that the State violated Brady v. Maryland, 373 U.S. 83 

(1963), by failing to disclose a cover letter accompanying the United States’ 

extradition request, which indicated that the death penalty would not be sought if 

Serrano were extradited from Ecuador, and by failing to disclose a letter received 

 

avoid arrest aggravator was properly submitted to the jury and found by the trial

court; and (9) whether Serrano’s death sentence is constitutional.” Id. at 104.
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by the state attorney from the Ecuadorian Consul, which expressed Ecuador’s 

displeasure with the potential imposition of the death penalty. However, we affirm 

the denial of this claim.

“Under Brady, the State must disclose to the defense knowledge of material 

exculpatory or impeachment evidence.” Jones v. State, 998 So. 2d 573, 579 (Fla. 

2008). As this Court has explained,

[t]o demonstrate a Brady violation the defendant must prove that (1) 

the evidence is favorable to him, either because it is exculpatory or 

because it is impeaching; (2) the State willfully or inadvertently 

suppressed it; and (3) that the suppression resulted in prejudice. 

Evidence is prejudicial or material under Brady if there is a reasonable 

probability that had the evidence been disclosed, the result of the trial 

would have been different. United States v. Bagley, 473 U.S. 667, 

678 (1985). Thus, the critical question is whether the favorable 

evidence could reasonably be taken to put the whole case in such a 

different light as to undermine confidence in the verdict. Strickler v. 

Greene, 527 U.S. 263, 290 (1999) (quoting Kyles[ v. Whitley, 514 

U.S. 419, 435 (1995)]).

Id. at 579-80. “Questions of whether evidence is exculpatory or impeaching and 

whether the State suppressed evidence are questions of fact, and the trial court’s 

determinations of such questions will not be disturbed if they are supported by 

competent, substantial evidence.” Taylor v. State, 62 So. 3d 1101, 1114 (Fla. 

2011). For Brady claims, “the defendant ultimately carries the burden of 

establishing a prima facie case based upon a legally valid claim.” Id. at 1115. 

Here, Serrano failed to demonstrate that the extradition packet cover letter 

and the Ecuadorian Consul’s letter constitute Brady material. The promise that the 
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death penalty would not be sought if Ecuador extradited Serrano, which Ecuador 

did not do, is not favorable to Serrano as exculpatory or impeachment evidence. 

The Ecuadorian Consul’s letter expressing Ecuador’s opposition to the death 

penalty also does not constitute exculpatory or impeachment evidence. As such, 

Serrano’s Brady claim is without merit. See Hurst v. State, 18 So. 3d 975, 1003 

(Fla. 2009) (“The State’s failure to disclose the notes regarding Hess is not a Brady

violation because the notes are not exculpatory or impeaching and do not provide 

any basis to undermine our confidence in the verdict.”). 

B. Closing Argument

Next, Serrano claims that trial counsel was ineffective for failing to object to 

portions of the State’s closing argument in the guilt phase, namely the State’s 

description of Serrano as diabolical and a liar, the State’s comments that allegedly 

shifted the burden of proof, and the State’s discussion of the presumption of 

innocence. However, because Serrano failed to establish prejudice, this Court 

affirms the denial of relief.

Following the United State Supreme Court’s decision in Strickland v. 

Washington, 466 U.S. 668 (1984), this Court has explained that for ineffective 

assistance of counsel claims to be successful, two requirements must be satisfied:

First, the claimant must identify particular acts or omissions of the 

lawyer that are shown to be outside the broad range of reasonably 

competent performance under prevailing professional standards. 

Second, the clear, substantial deficiency shown must further be 
- 14 -

demonstrated to have so affected the fairness and reliability of the 

proceeding that confidence in the outcome is undermined. 

Bolin v. State, 41 So. 3d 151, 155 (Fla. 2010) (quoting Maxwell v. Wainwright, 

490 So. 2d 927, 932 (Fla. 1986)). 

Regarding the deficiency prong of Strickland, there is a strong presumption 

that trial counsel’s performance was not ineffective. Strickland, 466 U.S. at 690. 

Moreover, “[a] fair assessment of attorney performance requires that every effort 

be made to eliminate the distorting effects of hindsight, to reconstruct the 

circumstances of counsel’s challenged conduct, and to evaluate the conduct from 

counsel’s perspective at the time.” Id. at 689. Further, the defendant carries the 

burden to “overcome the presumption that, under the circumstances, the challenged 

action ‘might be considered sound trial strategy.’ ” Id. (quoting Michel v. 

Louisiana, 350 U.S. 91, 101 (1955)). And counsel cannot be deemed ineffective 

for failing to make a meritless argument. Melendez v. State, 612 So. 2d 1366, 

1369 (Fla. 1992), abrogated on other grounds by Deren v. State, 985 So. 2d 1087 

(Fla. 2008).

“Regarding the prejudice prong of Strickland, the defendant must show that 

there is a reasonable probability that, ‘absent the [deficient performance], the 

factfinder would have [had] a reasonable doubt respecting guilt.’ ” Dennis v. 

State, 109 So. 3d 680, 690 (Fla. 2012) (quoting Strickland, 466 U.S. at 695). “A 
- 15 -

reasonable probability is a ‘probability sufficient to undermine confidence in the 

outcome.’ ” Id. (quoting Strickland, 466 U.S. at 694). 

“Because both prongs of Strickland present mixed questions of law and fact, 

this Court employs a mixed standard of review, deferring to the trial court’s factual 

findings that are supported by competent, substantial evidence, but reviewing the 

trial court’s legal conclusions de novo.” Dennis, 109 So. 3d at 690.

On direct appeal, “Serrano allege[d] that the State improperly called Serrano 

diabolical and a liar during closing arguments.” Serrano, 64 So. 3d at 111. 

Serrano also alleged on direct appeal “that the State improperly shifted the burden 

of proof by stating the following during closing arguments: (1) ‘You can’t come 

up with any other theory that fits that anybody else would have done it;’ (2) ‘He 

talks about this being a professional hit. There is no evidence. There is no 

evidence that these crimes are any kind of professional hit.’ ” Id. This Court 

rejected both claims, explaining that they were not preserved for appellate review 

by contemporaneous objections. Id. Additionally, with both claims, this Court 

concluded that, if there was error, the error did not constitute fundamental error. 

Id. Therefore, “[b]ecause [Serrano] could not show the comments were 

fundamental error on direct appeal, he likewise cannot show that trial counsel’s 

failure to object to the comments resulted in prejudice sufficient to undermine the 

outcome of the case under the prejudice prong of the Strickland test.” Chandler v. 
- 16 -

State, 848 So. 2d 1031, 1046 (Fla. 2003); see also Thompson v. State, 759 So. 2d 

650, 664 (Fla. 2000) (“Because none of these prosecutorial comments would have 

constituted reversible error had they been objected to at trial, we affirm the trial 

court ruling summarily denying this claim.”).

Regarding the State’s discussion of the presumption of innocence during 

closing argument, Serrano also cannot demonstrate prejudice. Even if the State’s 

brief discussion was erroneous, the jury was properly instructed about the 

presumption of innocence by the trial judge. And the trial judge instructed the jury 

that it must follow the law as set out in the jury instructions. Moreover, as the 

postconviction court explained in its order denying relief, the State’s comments 

when read in their entirety appear to be an attempt to argue that the State had met 

its burden of proof in the case through the presentation of evidence. Cf. Taylor v. 

State, 62 So. 3d at 1113 (concluding that comments “the presumption of innocence 

does not leave the defendant until evidence has been presented that wipes away 

that presumption” and that “[t]here is no longer a presumption of innocence as 

evidence has been presented” were not improper but were an attempt to state the 

belief that the State satisfied the burden of proof). As a result, there is not a 

reasonable probability of a different result. In other words, our confidence in the 

outcome is not undermined.

Accordingly, we affirm the denial of this claim.
- 17 -

C. Travel Timeline

Serrano also asserts that trial counsel was ineffective in failing to investigate 

and present evidence calling into question the State’s timeline for Serrano’s travel 

between Atlanta, Orlando, Bartow, Tampa, and back to Atlanta on the day of the 

murders. However, we affirm the postconviction court’s denial of this claim.

First, Serrano has failed to demonstrate deficiency. Trial counsel Norgard 

testified at the postconviction evidentiary hearing that he closely reviewed the 

alleged travel timeline and that, after considering his personal experiences 

traveling in these locations as well as comparing the timeline with others’ personal 

experiences, he believed the timeline was tight, but “doable.” And trial counsel 

strenuously argued to the jury at trial that the State’s timeline was very improbable, 

if not impossible. Serrano has not demonstrated that this investigation and strategy 

regarding the travel timeline was unreasonable. See generally Atkins v. Dugger, 

541 So. 2d 1165, 1166 (Fla. 1989) (“One tactic available to counsel is to present 

expert testimony. However, it is by no means the only tactic, nor is it required.”). 

Second, Serrano has failed to demonstrate prejudice. During the 

postconviction proceedings, Serrano never introduced any evidence indicating that 

a more complete investigation into the timeline or hiring an individual to reenact 

the timeline would have changed Serrano’s defense at trial or would have further 

called the State’s timeline into question. Cf. Conahan v. State, 118 So. 3d 718, 
- 18 -

727-28 (Fla. 2013) (holding that the defendant could not establish prejudice for 

trial counsel’s failure to hire an expert when the expert’s testimony would not have 

changed the nature of the State’s evidence). Thus, Serrano has failed to establish a 

reasonable probability of a different result. In other words, our confidence in the 

outcome is not undermined. 

Accordingly, this Court affirms the denial of this claim.

D. Law Enforcement Testimony

Serrano next claims that trial counsel was ineffective for failing to object to 

law enforcement’s testimony during the guilt phase and the prosecutor’s comment 

during opening statement that the police did not believe the crime was motivated 

by robbery. However, this Court affirms the denial of relief.

 First, the admission of this testimony and the prosecutor’s comment about 

the testimony were not improper. Evidence of a defendant’s motive and testimony 

about the course of law enforcement’s investigation are admissible. See generally

Craig v. State, 510 So. 2d 857, 863 (Fla. 1987) (“While evidence of motive is not 

necessary to a conviction, when it is available and would help the jury to 

understand the other evidence presented, it should not be kept from them merely 

because it reveals the commission of crimes not charged.”); Kearse v. State, 662 

So. 2d 677, 684 (Fla. 1995) (“We find no error in the admission of Tedder’s 

testimony regarding the transmissions to dispatch or the tape of those 
- 19 -

transmissions. The State did not offer this evidence to prove the truth of the matter 

asserted, but rather to establish the sequence of events and to explain why the 

police investigation focused on Kearse as the perpetrator.”). And trial counsel 

cannot be deemed deficient for failing to make a meritless objection.

Moreover, even if there was any error, Serrano could not demonstrate 

prejudice. The jury heard evidence that Serrano himself told law enforcement that 

he did not believe the murders were motivated by robbery. Further, trial counsel 

was not prevented from arguing that robbery might have been the motive based 

upon the evidence presented by the State that two victims were missing a watch 

and necklace respectively and that the crime scene was discovered in disarray. 

Thus, there is no reasonable probability of a different result had trial counsel 

objected. In other words, our confidence in the outcome is not undermined.

Accordingly, we affirm the denial of this claim.

E. Shoe Size

Additionally, Serrano argues that trial counsel was ineffective for failing to 

present evidence of Serrano’s shoe size. However, we affirm the denial of relief.

Serrano has failed to demonstrate deficiency. At the evidentiary hearing, 

trial counsel testified that he decided to not present evidence of Serrano’s shoe size 

in order for the defense to retain first and last closing argument. Trial counsel 

stated that he believed the State’s presentation of the size 81⁄2 shoes obtained from 
- 20 -

Serrano would suffice. Trial counsel’s decision was not “outside the broad range 

of reasonably competent performance under prevailing professional standards.” 

Bolin, 41 So. 3d at 155 (quoting Maxwell, 490 So. 2d at 932). 

Furthermore, Serrano has failed to demonstrate prejudice. The investigator 

hired by postconviction counsel to measure Serrano’s feet determined that Serrano 

wore a size 9 shoe in October 2013. And, while evidence was presented at trial 

that the shoe Serrano loaned his nephew Alvaro Penaherrera, which was consistent 

with the shoeprint discovered at the crime scene, is a size 7, evidence was also 

presented at trial that Serrano loaned his other nephew size 81⁄2 shoes in a different 

style. See Serrano, 64 So. 3d at 101. Moreover, the State’s podiatrist testified at 

the evidentiary hearing that an individual’s shoe size often increases as an 

individual ages, and the murders in this case took place nearly 16 years before 

Serrano’s feet were sized during postconviction proceedings. Also, the State 

presented evidence at the evidentiary hearing that the size 7 DeRizzo shoes loaned 

to Penaherrera that matched the print at the crime scene were almost the exact 

same size as the size 81⁄2 Bostonian Florentine shoes that Serrano loaned to his 

other nephew. In fact, the size 7 shoes were only .1 centimeters shorter than the 

81⁄2 shoes. Thus, there is no reasonable probability of a different result had trial 

counsel introduced evidence of Serrano’s shoe size. In other words, our 

confidence in the outcome is not undermined. 
- 21 -

Accordingly, we affirm the denial of this claim.

F. Giglio Claim Regarding John Purvis

Serrano claims that the State, in violation of Giglio v. United States, 405 

U.S. 150 (1972), presented false testimony from John Purvis regarding the 

individual Purvis witnessed standing outside Erie near the time of the murders. 

However, we affirm the denial of this claim.

“To establish a Giglio violation, it must be shown that: (1) the testimony 

given was false; (2) the prosecutor knew the testimony was false; and (3) the 

statement was material.” Guzman v. State, 868 So. 2d 498, 505 (Fla. 2003). 

“Under Giglio, once a defendant has established that the prosecutor knowingly 

presented false testimony at trial, the State bears the burden to show that the false 

evidence was not material.” Id. at 507. 

Here, there is competent, substantial evidence to support the postconviction 

court’s factual finding that John Purvis’ testimony was not false. See Davis v. 

State, 136 So. 3d 1169, 1186-87 (Fla. 2014) (“[T]he postconviction court 

concluded that Williams’ deposition testimony was ambiguous and thus did not 

demonstrate that her trial testimony was false. The postconviction court did not err 

in denying relief. The postconviction court’s factual conclusion that Williams’ 

testimony was not false is supported by competent, substantial evidence.”). John 

Purvis’ testimony at trial in 2006 was relatively consistent with his pre-hypnosis 
- 22 -

statements to law enforcement in 1999.4 He testified at trial that the man he saw 

outside Erie was holding his hands “like he was lighting a cigarette.” And, in 

1999, Purvis stated that the individual “had pulled his coat up like this and was 

lighting a cigarette in the wind.” Further, both at trial and in his statement to law 

enforcement in 1999, Purvis described the individual as non-Caucasian and 

possibly Hispanic with black hair even though Purvis also included the possibility 

in his statement in 1999 that the non-Caucasian individual might be Hispanic or 

Asian. However, the slight differences and ambiguities in Purvis’ descriptions 

appear to be the result of the same witness giving multiple statements describing 

the same thing over time. Serrano has failed to demonstrate that the State 

presented false testimony. 

Additionally, Serrano failed to present any testimony during postconviction 

proceedings to show the falsity of Purvis’ testimony at trial that the pre-hypnosis 

composite sketch introduced at trial “resemble[d] the person best you could 

describe it for this artist that you saw outside Erie Manufacturing that day.” 

 

4. Testimony regarding post-hypnosis statements is inadmissible. See

Stokes v. State, 548 So. 2d 188, 196 (Fla. 1989) (“[T]estimony of a witness who 

has undergone hypnosis for the purpose of refreshing his or her memory of the 

events at issue is inadmissible as to all additional facts relating to those events 

from the time of the hypnotic session forward. A witness who has been hypnotized 

may testify to statements made before the hypnotic session, if they are properly 

recorded.”).
- 23 -

Serrano’s argument is based on the assumption that Purvis’ second, post-hypnotic 

composite sketch must be a more reliable reflection of his recollection at trial than 

the pre-hypnotic composite sketch, but that assumption is not necessarily true. As 

this Court has explained, “although some experts profess the belief that 

hypnotically refreshed testimony is reliable, many more experts have arrived at the 

opposite conclusion.” Stokes v. State, 548 So. 2d 188, 194 (Fla. 1989) (footnote 

omitted) (ruling that additional hypnotically refreshed testimony is inadmissible). 

Accordingly, this Court affirms the denial of this Giglio claim.

G. Ineffective Assistance of Counsel Claim Regarding John Purvis

Next, Serrano alleges that trial counsel was ineffective for failing to object to 

John Purvis’ allegedly false testimony that was presented in violation of Giglio. 

Serrano also claims that trial counsel was ineffective for failing to depose Purvis, 

for failing to cross-examine him regarding his pre-hypnosis description of the man 

he saw outside as being non-Caucasian and possibly Asian or Hispanic and 

lighting a cigarette, and for failing to seek the admission of Purvis’ post-hypnotic 

statements and composite sketch. However, because Serrano failed to demonstrate 

deficiency, we affirm the postconviction court’s denial of relief.

First, as explained previously, John Purvis’ testimony describing the man he 

saw outside Erie was not false testimony in violation of Giglio. Therefore, trial 
- 24 -

counsel cannot be deficient for failing to raise a meritless objection based on 

Giglio. 

Second, Serrano failed to establish that trial counsel was deficient for failing 

to seek the admission of Purvis’ hypnotically refreshed statements and composite 

sketch. In Stokes, 548 So. 2d at 196, this Court held that “the testimony of a 

witness who has undergone hypnosis for the purpose of refreshing his or her 

memory of the events at issue is inadmissible as to all additional facts relating to 

those events from the time of the hypnotic session forward.” However, this Court 

explained that “[a] witness who has been hypnotized may testify to statements 

made before the hypnotic session, if they are properly recorded.” Id. 

Serrano argues that Purvis’ hypnotically refreshed statements fall under an 

exception outlined in the United States Supreme Court’s decision in Rock v. 

Arkansas, 483 U.S. 44 (1987). However, Rock involved hypnotically refreshed 

statements in the context of a criminal defendant’s constitutional right to testify in 

his or her own defense. Since Purvis was a State witness, not the defendant, Rock

is inapplicable here. Consequently, because Purvis’ hypnotically refreshed 

statements and the post-hypnosis composite sketch were inadmissible, trial counsel 

cannot be deemed deficient for failing to present it. See Owen v. State, 986 So. 2d 

534, 546 (Fla. 2008) (“Trial counsel cannot be deemed ineffective for failing to 

present inadmissible evidence.”).
- 25 -

Third, Serrano failed to demonstrate that trial counsel was deficient for 

failing to depose Purvis and cross-examine him regarding alleged discrepancies in 

his descriptions of the individual he saw the night of the murders. At the 

evidentiary hearing, trial counsel explained that he did not want to diminish Purvis’ 

testimony or undermine his credibility because Purvis’ description of the 

individual being 25 to 30 years old was favorable to the defense’s case. Serrano 

was significantly older than the man Purvis described, and trial counsel “were 

arguing that Mr. Purvis saw somebody other than Mr. Serrano out there[. W]e 

were trying to convince the jury that he saw who was the killer.” Trial counsel’s 

strategic decision was reasonable, and Serrano has failed to demonstrate deficiency 

under Strickland.

Accordingly, this Court affirms the denial of relief. 

H. DNA Testing

Further, Serrano alleges postconviction STR DNA testing results warrant a 

new trial and that trial counsel was ineffective for failing to seek STR DNA 

testing. However, we affirm the denial of both claims.

“This Court has previously held that for a conviction to be set aside based on 

a claim of newly discovered evidence, the defendant must meet two 

requirements[:]”

First, the evidence must not have been known by the trial court, the 

party, or counsel at the time of trial, and it must appear that the 
- 26 -

defendant or defense counsel could not have known of it by the use of 

diligence. Second, the newly discovered evidence must be of such 

nature that it would probably produce an acquittal on retrial. See

Jones v. State, 709 So. 2d 512, 521 (Fla. 1998) (“Jones II”). Newly 

discovered evidence satisfies the second prong of the Jones II test if it 

“weakens the case against [the defendant] so as to give rise to a 

reasonable doubt as to his culpability.” Id. at 526 (quoting Jones v. 

State, 678 So. 2d 309, 315 (Fla. 1996)). In determining whether the 

newly discovered evidence compels a new trial, the trial court must 

“consider all newly discovered evidence which would be admissible,” 

and must “evaluate the weight of both the newly discovered evidence 

and the evidence which was introduced at the trial.” Jones v. State, 

591 So. 2d 911, 916 (Fla. 1991) (“Jones I”).

Spann v. State, 91 So. 3d 812, 815-16 (Fla. 2012). Moreover, this Court has 

explained that “[w]hen the trial court rules on a newly discovered evidence claim

after an evidentiary hearing, we accept the trial court’s findings on questions of 

fact, the credibility of witnesses, and the weight of the evidence if based upon 

competent, substantial evidence.” Waterhouse v. State, 82 So. 3d 84, 101 (Fla. 

2012) (quoting Hitchcock v. State, 991 So. 2d 337, 349 (Fla. 2008)).

Here, the second prong of the newly discovered evidence standard is not 

satisfied. At the evidentiary hearing, all three DNA witnesses testified that Serrano 

could neither be included nor excluded from the DNA located in the palm of the 

plastic glove discovered under Diane Patisso’s body. And while one of the 

witnesses testified that Serrano could be excluded as a contributor to the mixture of 

approximately three people on the glove fingers, the other two experts disagreed. 

The other two experts, one of whom was even called by Serrano, testified that 
- 27 -

there was not enough information using STR technology to either exclude or 

include Serrano as having contributed to the mixture. All three explained that 

victim George Patisso was the major contributor to the mixture on the glove 

fingers. Considering this evidence as well as the evidence presented at trial, it is 

clear that the inconclusive STR DNA evidence would not probably produce an 

acquittal on retrial because it does not give rise to a reasonable doubt as to 

Serrano’s culpability.

Additionally, Serrano failed to establish that trial counsel was ineffective for 

failing to seek this STR DNA testing. At the evidentiary hearing, trial counsel 

explained that the State had no DNA evidence linking Serrano to the crime scene, 

and he did not want to risk the possibility of establishing such a link with a defense 

request for additional DNA testing. Instead, trial counsel chose to stress to the jury 

that there was no physical evidence demonstrating that Serrano was at Erie the 

night of the murders. This decision was reasonable and not “outside the broad 

range of reasonably competent performance under prevailing professional 

standards.” Bolin, 41 So. 3d at 155 (quoting Maxwell, 490 So. 2d at 932). 

Consequently, Serrano did not establish deficiency.

Serrano also failed to demonstrate prejudice. There is not a reasonable 

probability of a different result if trial counsel had presented the inconclusive STR 

DNA testing of the plastic glove. Three experts agreed that the further DNA 
- 28 -

testing of the palm of the glove found under one of the four victims could not 

exclude Serrano, and two of three experts agreed that further DNA testing of the 

glove fingers could not exclude Serrano. In other words, our confidence in the 

outcome is not undermined.

Accordingly, this Court affirms the denial of these newly discovered 

evidence and ineffective assistance of counsel claims. 

I. Motion For New Trial

In his habeas petition, Serrano alleges that appellate counsel was ineffective 

for failing to assert trial counsel’s ineffectiveness on the record for not including a 

challenge to the sufficiency of the evidence in Serrano’s motion for a new trial 

after the jury’s verdict. However, we deny relief.

Claims of ineffective assistance of appellate counsel are appropriately 

presented in a petition for a writ of habeas corpus. Valle v. Moore, 837 So. 2d 

905, 907 (Fla. 2002); Freeman v. State, 761 So. 2d 1055, 1069 (Fla. 2000). The 

standard of review for claims of ineffective assistance of appellate counsel mirrors 

the Strickland standard for ineffective assistance of trial counsel. Valle, 837 So. 2d 

at 907. In order to grant habeas relief on ineffectiveness of appellate counsel, this 

Court must determine

first, whether the alleged omissions are of such magnitude as to 

constitute a serious error or substantial deficiency falling measurably 

outside the range of professionally acceptable performance and, 

second, whether the deficiency in performance compromised the 
- 29 -

appellate process to such a degree as to undermine confidence in the 

correctness of the result.

Pope v. Wainwright, 496 So. 2d 798, 800 (Fla. 1986) (citing Johnson v. 

Wainwright, 463 So. 2d 207, 209 (Fla. 1985)). 

Additionally, appellate counsel cannot be deemed ineffective for failing to 

raise meritless issues or issues that were not properly raised in the trial court and 

are not fundamental error. Valle, 837 So. 2d at 908. “In fact, appellate counsel is 

not necessarily ineffective for failing to raise a claim that might have had some

possibility of success; effective appellate counsel need not raise every conceivable

nonfrivolous issue.” Id. (citing Jones v. Barnes, 463 U.S. 745, 751-53 (1983);

Provenzano v. Dugger, 561 So. 2d 541, 549 (Fla. 1990).

In Reed v. State, 875 So. 2d 415, 439 (Fla. 2004), this Court denied a similar 

habeas claim regarding trial counsel’s alleged ineffectiveness for the failure to file 

a motion for new trial or other motion “challenging the legal sufficiency of the 

State’s case.” In Reed, this Court first explained that “[t]o the extent that Reed 

claims his trial counsel rendered ineffective assistance of counsel, this issue is 

improperly raised in a petition for writ of habeas corpus.” Id. at 439-40. Then, 

this Court in Reed noted that “trial counsel moved for directed judgment of 

acquittal at the conclusion of the State’s case-in-chief.” Id. at 440. Finally, this 

Court in Reed explained that, because this Court found the evidence sufficient on 
- 30 -

direct appeal, it would not have found any merit to a claim challenging sufficiency 

if one had been raised by appellate counsel. Id.

Likewise, trial counsel here moved for a directed verdict after the State’s 

case-in-chief, and, on direct appeal, this Court concluded that the circumstantial 

evidence was sufficient to support Serrano’s four convictions for first-degree 

murder. Serrano, 64 So. 3d at 104-05. The end result of this Court’s sufficiency 

analysis would not have been any different. Accordingly, appellate counsel cannot 

be deemed ineffective for failing to raise this meritless issue. 

J. Polygraph Evidence

In his next habeas claim, Serrano asserts that appellate counsel was 

ineffective for failing to challenge the trial court’s ruling regarding the 

admissibility of polygraph examinations. Prior to trial, trial counsel moved to 

introduce evidence of polygraphs given to three State witnesses, namely Alvara 

Penaherrera, Gustavo Concha, and David Catalan. After holding a hearing under 

Frye v. United States, 293 F. 1013 (D.C. Cir. 1923), the trial court denied the

motion. 

This Court has repeatedly explained that polygraph evidence is generally 

inadmissible in Florida. See Duest v. State, 12 So. 3d 734, 746 (Fla. 2009); Walsh 

v. State, 418 So. 2d 1000, 1002 (Fla. 1982) (“[P]olygraph evidence is inadmissible 

in an adversary proceeding in this state.”). And, in Gosciminski v. State, 132 So. 
- 31 -

3d 678, 701-04 (Fla. 2013), after reviewing the evidence presented at the Frye

hearing, this Court affirmed the trial court’s ruling that polygraphs are not 

generally accepted in the scientific community and are, therefore, inadmissible. 

Accordingly, appellate counsel cannot be deemed deficient for failing to 

raise a meritless claim regarding the admissibility of polygraph evidence. We deny 

this habeas claim.

K. Firearms

Serrano also alleges that appellate counsel was ineffective for failing to more 

directly argue on direct appeal that evidence of Serrano’s gun collection was 

inadmissible at trial. However, because Serrano cannot demonstrate prejudice, we 

deny this habeas claim.

In the direct appeal, appellate counsel raised a variation of this claim, which 

this Court rejected. Specifically, as part of Serrano’s claim that prosecutorial 

misconduct required reversal, appellate counsel alleged “that the State improperly 

elicited evidence that Serrano owned multiple guns for the purpose of implying 

that since Serrano owned a lot of guns, he must have been the killer in this case.” 

Serrano, 64 So. 3d at 110. This Court explained that, “[a]lthough general 

ownership of guns does not provide evidence that one committed a murder, the 

evidence introduced in this case demonstrated that Serrano was familiar with and 

owned the caliber of firearms used to commit these murders.” Id. at 110-11. 
- 32 -

Importantly, this Court also stated that, “even if the admission of this gun evidence 

were considered error, the error would be harmless beyond a reasonable doubt.” 

Id. at 111.

Because this Court determined that any error in admitting the gun evidence 

was harmless, Serrano cannot demonstrate prejudice under Strickland. See Cox v. 

State, 966 So. 2d 337, 347 (2007) (“The harmless error test as articulated by this 

Court requires the State ‘as the beneficiary of the error, to prove beyond a 

reasonable doubt that the error complained of did not contribute to the verdict or, 

alternatively stated, that there is no reasonable possibility that the error contributed 

to the conviction.’ State v. DiGuilio, 491 So. 2d 1129, 1135 (Fla. 1986). Thus, in 

concluding that the prosecutor’s misstatements of the law during voir dire 

constituted harmless error, we held that there was no reasonable probability that 

these misstatements contributed to Cox’s conviction. See id. Therefore, regardless

of whether counsel was deficient for failing to object to improper statements by the 

prosecution, Cox cannot demonstrate prejudice under the second prong of 

Strickland.”). 

Accordingly, we deny relief.

L. Hurst

Finally, we consider whether Serrano is entitled to relief after the United 

States Supreme Court issued its decision in Hurst v. Florida, 136 S. Ct. 616 (2016). 
- 33 -

Because the jury recommended the death penalty on all four counts by a vote of 

nine to three, we conclude that Serrano’s death sentences violate Hurst. See

Kopsho v. State, 209 So. 3d 568, 569-70 (Fla. 2017). We must then consider 

whether the Hurst error was harmless beyond a reasonable doubt:

The harmless error test, as set forth in Chapman[v. California, 386 

U.S. 18 (1967),] and progeny, places the burden on the state, as the 

beneficiary of the error, to prove beyond a reasonable doubt that the 

error complained of did not contribute to the verdict or, alternatively 

stated, that there is no reasonable possibility that the error contributed 

to the conviction.

Hurst v. State, 202 So. 3d 40, 68 (Fla. 2016) (quoting DiGuilio, 491 So. 2d at 

1138), petition for cert. filed, No. 16-998 (U.S. Feb. 13, 2017).

Because the jury in this case recommended death on all four counts by a 

vote of nine to three, “we cannot determine that the jury unanimously found that 

the aggravators outweighed the mitigation.” Kopsho, 209 So. 3d at 570. “We can 

only determine that the jury did not unanimously recommend . . . sentence[s] of 

death.” Id. Therefore, because we cannot say that there is no possibility that the 

error did not contribute to the sentences, the error in Serrano’s sentencing was not 

harmless beyond a reasonable doubt.

Accordingly, we vacate the death sentences and remand for a new penalty 

phase. See Hurst, 202 So. 3d at 69. 
- 34 -

III. CONCLUSION

For the foregoing reasons, we affirm the denial of Serrano’s postconviction 

guilt phase claims, deny his habeas petition, vacate his death sentences, and 

remand for a new penalty phase. 

It is so ordered.

LABARGA, C.J., and PARIENTE, LEWIS, and QUINCE, JJ., concur. 

POLSTON, J., concurs in part and dissents in part with an opinion, in which 

CANADY and LAWSON, JJ., concur.

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION, AND 

IF FILED, DETERMINED.

POLSTON, J., concurring in part and dissenting in part.

I concur with the majority’s decision except its vacating of the death 

sentences pursuant to Hurst.

CANADY and LAWSON, JJ., concur.

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

Donald G. Jacobsen, Chief Judge - Case No. 532001CF003262A0XXXX

And an Original Proceeding – Habeas Corpus 

Robert S. Friedman, Capital Collateral Regional Counsel, Northern Region, 

Tallahassee, Florida; and Louis G. Carres, Special Assistant Capital Collateral 

Regional Counsel, Northern Region, West Palm Beach, Florida,

for Appellant/Petitioner

Pamela Jo Bondi, Attorney General, Tallahassee, Florida; and Stephen D. Ake, 

Assistant Attorney General, Tampa, Florida,

for Appellee/Respondent