# Supreme Court of Florida

____________ No. SC18

- 810

____________ DUANE EUGENE OWEN, Appellant,

vs. STATE OF FLORIDA, Appellee. June 25, 2020
PER CURIAM

. Duane Eugene Owen appeals an order of the circuit court denying his
successive motion to vacate his sentence of death under Florida Rule of Criminal
Procedure 3.851 , relying on Hurst v. Florida , 136 S. Ct. 616 (2016); Hurst v. State , 202 So. 3d 40 (Fla. 2016) , cert. denied , 137 S. Ct. 2161 (2017) , receded from by
State v. Poole , 45 Fla. L. Weekly S41 (Fla. Jan. 23, 2020) , clarified , 45 Fla. L. Weekly S121 (Fla. Apr. 2, 2020) ; and this Court’s Hurst

- related precedent regarding death sentences that became final after June 24, 2002. We have jurisdiction. See art. V, § 3(b)(1), Fla. Const

. Applying McKinney v. Arizona , 140- 2

- S. Ct. 702, 707

- 09 (2020), and State v. Poole , 45 Fla. L. Weekly S41, we affirm
Owen’s sentence of death.
BACKGROUND In 1984, Owen forcibly entered a home in which fourteen

- year
- old Karen Slattery was babysitting two young children , stabbed Slattery to death , and sexually assaulted her. Owen v. State ( Owen II ) , 862 So. 2d 687, 700 (Fla. 2003) , cert. denied , 543 U.S. 986 (2004)

. 1 Owen was sentenced to deat h after his jury recommended this sentence by a vote of ten to two. Id. at 690.
Owen has also been convicted of the first

- degree murder of another victim, Georgianna Worden, who was murdered five days after Slattery in a scenario “substantially similar to [that] of the Slattery murder.” Id. at 691. Owen was sentenced to death for Worden’s murder following his jury’s ten

- to

- two recommendation for death. See Owen v. State , 596 So. 2d 985, 987 (Fla. 1992),
cert. denied , 506 U.S. 921 (1992). With respect to this murder, too, Owen has sought r elief under Hurst v. Florida and Hurst v. State

. Owen v . S tate , 247 So. 3d 394, 395 (Fla. 2018). However, we have already held that Owen is not entitled to
Hurst relief from his sentence for the Worden murder because that sentence

1 . For the sexual offense, Owen was not convicted of sexual battery, but attempted sexual battery. Owen II , 862 So. 2d at 690. Although there was clear evidence of a sexual assault, it was not clear whether it occurred before or after Slattery’s death. Id. at 699.- 3

- became final before Jun e 24, 2002 , the cut

- off date for such relief that w as established in Asay v. State , 210 So. 3d 1, 22 (Fla. 2016), and Mosley v. State , 209 So. 3d 1248, 1283 (Fla. 2016)

. See Owe n , 247 So. 3d at 395

. Even though Owen murdered Slattery five days before he m urdered Worden, his death sentence for the murder of Slattery is in a different posture with respect to

our Hurst

- related precedent. The reason for this difference is that Owen’s original conviction and sentence of death for Slattery’s murder was reversed and remanded
for a new trial , s ee Owen v. State ( Owen I ) , 560 So. 2d. 207, 212 (Fla. 1990) , which delayed the finality date of his conviction and sentence for that murder. Although Owen was convicted of the Slattery murder again and given the same sentence, the new conviction and sentence for Slattery’s murder did not become
final un til after June 24, 2002, more than a decade after Owen’s conviction and
sentence of death f or Worden’s murder became final. See Owen II , 862 So. 2d at 700 , cert. denied , 543 U.S. 986 (2004)

. With respect to the Slattery murder and the resulting sentence, which is at
issue in this case , Owen, whose DNA was found in sem en recovered from
Slatter y’s body , confessed to his crimes. Id

. at 702. More specifically, Owen admitted the following facts: Owen admitted to cutting a screen out of a window to gain access to the home where Slattery was babysitting. The first time he entered the home, he heard noises and observed Slattery fixing the hair of one of her charges. Owen left the home but subsequently returned.- 4

- Initially, when he returned, he had his socks on his hands, but immediately upon entering the house, he searched a closet in the home and found gloves, which he placed on his hands, returning his socks to his feet. He also retrieved a hammer from the same closet. According to Owen, he confronted Slattery near the phone as she was concluding a tele phone conversation. He ordered her to return the phone to its cradle, and when she did not, he dropped his hammer, grabbed the phone from her hand, returned it to its base, and immediately began stabbing her. After Owen had stabbed Slattery, he checked o n the children to ensure they had not awakened during the attack, and he then proceeded to lock the doors and turn off all the lights and the television. Owen then dragged Slattery by her feet into the bedroom, removed her clothes, and sexually assaulted her. He explained to the officer questioning him that he had only worn a pair of “short

- shorts” into the house. After he sexually assaulted Slattery, Owen showered to wash the blood from his body, and then exited the house through a sliding glass door. He then returned to the home where he was staying and turned the clocks back [in that house] to read 9:00 p.m. According to Owen, he did this to provide an alibi based on time. He admitted that after he turned the clocks back, he purposely asked his room mate the time. Owen bragged to the officers about his plan to turn back the clocks, explaining that he “had to be thinking.”
Id. at 700

. Along with first

- degree murder, Owen was convicted of attempted sexual battery and burglary at his retrial

. Id. at 690. After t his Court affirmed Owen’s
convictions and sentence of death on direct appeal , id. , and the United States Supreme Court denied certiorari , Owen v. Florida , 543 U.S. 986 (2004) , this Court affirmed the denial of Owen’s initial postconviction motion and denied his petition
for writ of habeas corpus. Owen v. State ( Owen III ) , 986 So. 2d 534 , 541 (Fla. 2008). The federal district court subsequently denied Owen’s federal habeas- 5

- petition , the Eleventh Circuit Court of Appeals affirmed, and the S upreme Court
denied certiorari

. See Owen v. Fla. Dep’t of Corr. , 686 F.3d 1181, 1183 (11th Cir. 2012), cert. denied , 569 U.S. 960 (2013). In the successive postconviction motion
at issue in this appeal , Owen sought relief from his death sentence pursuant to the Supreme Court’s decision in Hu rst v. Florida and this Court’s decision on remand
in Hurst v. State

. The circuit court denied relief, and Owen seeks reversal of that ruling.
ANALYSIS
In Hurst v. Florida , the Supreme Court found Florida’s capital sentencing scheme unconstitutional because it “required the judge alone to find the existence of an aggravating circumstance.” 136 S. Ct. at 624. In so holding, the Supreme
Court overruled its prior precedent u pholding Florida’s capital sentencing scheme “to the extent [that precedent] allow[ed] a sentencing judge to find an aggravating circumstance, independent of a jury’s factfinding, that is necessary for the imposition of the death penalty.” Id. Then, in H urst v. State , this Court held the following : [B]efore the trial judge may consider imposing a sentence of death, the jury in a capital case must unanimously and expressly find all the aggravating factors that were proven beyond a reasonable doubt, unanimo usly find that the aggravating factors are sufficient to impose death, unanimously find that the aggravating factors outweigh the mitigating factors, and unanimously recommend a sentence of death.- 6

- 202 So. 3d at 57. We have since receded from this holding , “except to the extent it requires a jury unanimously to find the existence of a statutory aggravating circumstance beyond a reasonable doubt.” Poole , 45 Fla. L. Weekly at S48. The Supreme Court’s recent decision in McKinney confirms that we correct ly
i nterpreted Hurst v. Florida in Poole and supports our decision to recede from the additional requirements imposed by Hurst v. State

. 2 McKinney , 140 S. Ct. at 707 3 (“Under Ring [ v. Arizona , 536 U.S. 584 (2002),] and Hurst [ v. Florida ], a jury must find the aggravating circumstance that makes the defendant death eligible. But importantly, in a capital sentencing proceeding just as in an ordinary sentencing proceeding , a jury (as opposed to a judge) is not constitutionally required to weigh the aggravating and mitigating circumstances or to make the ultimate sentencing decision within the relevant sentencing range.”).
B eyond the requirement that a jury unanimously find the existence of an aggravating circumstance beyond a reasonable dou bt , as explained in Poole , the

2

. The foundation underpinning Hurst v. State was an erroneous reading of Hurst v. Florida as imposing a constitutional requirement for unanimous jury “findings” on sentencing factors beyond the existence of at least one aggravating circumsta nce. See Hurst v. State , 202 So. 3d at 44 (“[W]e hold that the Supreme Court’s decision in Hurst v. Florida requires that all the critical findings necessary before the trial court may consider imposing a sentence of death must be found unanimously by the jury.”). McKinney confirms that our prior decision in Hurst v. State was erroneously grounded on a fundamental misunderstanding of Hurst v. Florida , as we held in Poole

.- 7

- holding of Hurst v. State is not supported by state or federal constitutional law or the statutory law that was in effect before its issuance. Poole , 45 Fla. L. Weekly at
S 43

- 48 ; accord McKinney , 140 S. Ct. at 707

- 8 . In contrast, the requirement that a jury, not the judge, find the existe nce of an aggravating circumstance is mandated by the Supreme Court’s decision in Hurst v. Florida , 136 S. Ct. at 624, as a Sixth
Amendment requirement

. McKinney , 140 S. Ct. at 707 ; Poole , 45 Fla. L. Weekly
at S44

- 47

. T he Sixth Amendment test required by Hurst v. Florida , 136 S. Ct. at 624,
and applied in Poole , 45 Fla. L. Weekly at S47

- S48, is easily met in Owen ’s case
because unanimous jury findings did support two of the aggravators in Owen’s

case (prior violent felony and in the course of a burglary) and would preclude a finding of Hurst v. Florida error
. See Hurst v. Florida , 136 S. Ct. at 624 (finding that Florida’s sentencing scheme violated the Six th Amendment because it “required the judge alone to find the existence of an aggravating circumstance”) ; Poole , 45 Fla. L. Weekly at S48. Specifically, the prior

- violent

- felony aggravator
was established by Owen’s conviction s, after a jury trial, of the first

- degree murder and sexual battery of Worden

. Owen III , 986 So. 2d at 553, 555; Owen , 596 So. 2d- 8

- at 986

- 87 (Worden case)

. 3 The “ in the course of a burglary ” aggravator was established by the jury’s verdict of guilt as to that offen se in this case

. Owen II, 862 So. 2d at 690. In fact, Owen conceded the existence of both of these aggravators at sentencing. Id. at 702.
CONCLUSION Because Owen’s jury found that he committed first

- degree murder and because jury findings establish the existence of two statutory aggravators, he is eligible for the death penalty under the law in effect at the time of his crime, and there is no constitutional infirmity in his sentence under Hurst v. Florida or the portion of the Hurst v. State holding that remains after our decision in Poole

. Accordingly, we affirm the order of the circuit court upholding the death sentence imposed in this case.
It is so ordered. CANADY, C.J., and POLSTON, LAWSON, MUÑIZ , and COURIEL, JJ., concur. LABARGA, J., recused

. NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED. An Appeal from the Circuit Court in and for Palm Beach County, Glenn D. Kelley , Judge

- Case No 501984CF004014AXXXMB

3 . The trial court relied on additional prior violent felonies, against two additional victims, to establish this aggravator as well. However, for the purpose of our decision today, it is sufficient to note the Worden murder and sexual battery.- 9

- Eric Pinkard , Capital Collateral Regional Counsel , and James L

. Driscoll J r. , Assistant Capital Collateral Regional Counsel , Middle Region, Temple Terrace, Florida, for Appellant Ashley Moody, Attorney General, Tallahassee, Florida, and Celia A. Terenzio, Assistant Attorney General, Pa lm Beach, Florida, for Appellee
Arthur I. Jacobs of Jacobs Scholz & Wyler, LLC , Fernandina Beach, F lorida,
for Amicus Curiae Florida Prosecuting Attorneys Association