# Supreme Court of Florida

____________

No. SC15

- 1823

____________

MATTHEW LEE CAYLOR
,

Appellant,

vs.

STATE OF FLORIDA
, Appellee.

____________

No. SC16

- 399

____________

MATTHEW LEE CAYLOR
,

Petitioner,

vs.

JULIE L. JONES, etc

. , Respondent.

[May 18, 2017]

PER CURIAM.

Matthew Lee Caylor appeals an order of the circuit court denying his motion

to vacate his conviction of first

- degree murder and sentence of death filed under

F lorida Rule of Criminal Procedure 3.851 and petitions this Court for a writ of- 2

-

habeas corpus. We have jurisdiction. See art. V, § 3(b)(1), (9), Fla. Const. For the

reasons stated below, we grant Caylor’s petition for a writ of habeas corpus, vacate

Cayl or’s death sentence, and remand for a new penalty phase. We affirm,

however, the trial court’s denial of postconviction relief.

FACTS AND PROCEDURAL HISTORY

Following a jury trial, Matthew Caylor was convicted of first

- degree murder

,

sexual battery invo lving great physical force, and aggravated child abuse for the

2008 murder of Melinda Hinson

. Caylor v. State , 78 So. 3d 482, 486 ( Fla. 2011).

The jury recommended death by a vote of eight to four, which the trial court

followed in its sentencing order. Id. This Court set forth the following facts on

direct appeal:

In July 2008, Melinda Hinson was living with her mother, her
mother ’ s boyfriend, her fifteen

- year

- old brother, and Daryl Lawton, a family frien d, in a single room at the Valu

- Lodge Motel in Panama City. The family had moved to Florida from Kentucky in December 2007 and Lawton came to live with the family soon after. Due to strained finances, all five moved to the motel in mid

- June. The room

was crowded and the children did n ot have school during the summer, so Melinda would spend most of her time by the motel ’ s pool. Melinda would also walk two dogs belonging to Scott Heinze and Tyler Nichols, who also lived at the motel, while Heinze and Nichols
were at work. According to the motel ’ s records, Matthew Caylor checked into the motel on June 25, 2008. At trial, Lawton testified that prior to the
date of Melinda ’ s disappearance, he had only spoken with Caylor a few times and that he had never seen Melinda or her brother speak

w ith Caylor. However, at around noon on July 8, Caylor came to Lawton and asked to borrow some duct tape, which Lawton took to Caylor ’ s room. Later in the day, Caylor called Lawton and asked if- 3

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he could also borrow a steak knife. Again, Lawton went to Ca ylor ’ s room to take him the item. Lawton recalled that Melinda and her brother accompanied him on one of these occasions, but said that they did not speak to Caylor. Melinda was last seen alive shortly after 5 p.m. on July 8, when
she returned Heinze and Nichols ’ dogs to their room after taking the dogs for a walk. When Melinda did not return to her family ’ s room, the family first asked Heinze and Nichols whether they had seen her. Heinze told the family that he had last seen Melinda when she
returned t he dogs to their room. The family then searched the motel and the surrounding area. When they could not find Melinda, they called the police and reported that the girl was missing.
Melinda ’ s body was discovered on the morning of July 10,
hidden under a bed in a room two doors down from Heinze and
Nichols ’ room. The body was found naked and lying face

- down. The discovery was made by a housekeeper who was following the motel ’ s requirement of checking under the beds for trash. Although the room
had been cleaned the previous day, the first housekeeper to clean the room testified that she did not look under the bed that day because her back was hurting. A review of the motel ’ s records revealed that Matthew Caylor had been renting the room on the day of Mel inda ’ s disappearance. Officers of the Panama City Police Department subsequently learned that Caylor had been arrested in connection with a different criminal matter and that he was already in the custody of the Bay County Sheriff ’ s Department.
Detective Mark Smith of the Panama City Police Department testified at trial that he interviewed Caylor after the body was
discovered. He was accompanied by Investigator Mike Wesley of the Bay County Sheriff ’ s Department, who had interrogated Caylor following the initial arrest. When Smith and Wesley went to see Caylor, Caylor said that he was glad to see the officers because he
wanted to talk to them. The officers read Caylor his Miranda [v.
Arizona , 384 U. S. 436 (1966)

, ] rights, which he waived. In the interrogation that followed, Caylor confessed to the murder of Melinda Hinson and described the circumstances leading up to the
crime. Based on Caylor ’ s statements and evidence recovered from the
crime scen e, Caylor was charged with first

- degree murder (based on both premeditation and felony murder theories of the offense ), see § 782.04(1)(a) 1.

- 2., Fla. Stat. (2008), sexual battery involving great- 4

-

physical force, see § 794.011(3), Fla. Stat. (2008), and ag gravated child abuse, see § 827.03(2), Fla. Stat. (2008). In statements made initially to the police officers and later to the trial court, Caylor gave the foll owing account of the murder and the events leading up to it. In the summer of 2008, Caylor was on felony probation in the State of Georgia based on an incident that had occurred several years before in which he was accused of molesting
the fourteen

- year

- old daughter of a neighbor. Caylor asserted that he was falsely accused, but said that on his a ttorney ’ s advice he pled guilty to avoid a possible prison sentence. He was later required to register as a sex offender after violating the terms of his probation by being convicted of possession of cocaine. Caylor stated that after several years he bec ame frustrated with the restrictions placed on him as a sex offender, and said that he told his probation officer that he would rather serve time in jail and be done with the sentence. Caylor said that he then went to Panama City to relax because he thoug ht he would have to spend approximately a year and a half in jail. Caylor admitted that he had not been given permission by his probation officer to leave Georgia, even though he knew he was required to receive such permission by Georgia law. Caylor dec i ded to rent a room at the Valu

- Lodge Motel because
it was close to the beach. While in Panama City, Caylor began selling cocaine and methamphetamine. He said that he also became friends with “two Russian girls,” and that he became romantically involved

w ith one of the girls, Marina. He said that he discovered on July 8 that the women had stolen some of his drugs. Caylor said that he borrowed a knife and duct tape with the intent of using it to threaten them to get his drugs back. He subsequently went t o the women ’ s apartment, taking the knife and duct tape with him. Caylor said that he became violent during that encounter and decided to go back to his
room at the motel. He was later arrested for the incident at the
apartment. During his interrogation , Caylor told Smith and Wesley that he returned to his motel room immediately after the incident at the

women ’ s apartment. He said that he had been back in his room for only a few minutes when Melinda Hinson knocked on his door and asked him for a cigaret te. He told the officers that at the time Melinda came to his room, he felt that he had “been through all of this because of something I didn ’ t do,” and told the officers that he decided he was “going to make it worth it.” When asked during the Spencer hearing- 5

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what he meant by these statements, Caylor responded that he meant he was angry about his prior conviction for child molestation. He told the trial court he felt that “[i]f I ’ m going to be in trouble for having sex with this girl being in my room, I might as well have sex with this girl.” After Melinda entered the room, Caylor said that she sat down on the bed and that they began smoking. He asked her what she had been doing. Melinda replied that she had just finished walking a dog that belonged to the men in the next room. Caylor asked how old she
was and she told him that she was thirteen. He said that he asked her why she hung out with the guys next door. Melinda responded that “they think they ’ re hot stuff” but said that she “[did]n ’ t real ly like
them.” According to Caylor, Melinda then told him that she thought he was “hot,” moved clo se to him on the bed and put her arm around
him. Caylor said that they started kissing, that he took her clothes off, and that they started having sex. Caylor said that at some point he “just started choking her.” He claimed that they had stopped having sex just before he began to strangle her. He said that he “wasn ’ t into it” and that the intercourse lasted for only thirty to forty

- five seconds. Howev er, he said that they were still naked when he began to strangle her and that he was still on top of her. Caylor said that when he began to choke Melinda, “she was flipping out and I just wanted her to go away.” He said that she began fighting him and sa ying, “[L]et me ask you a question, let me ask you a question,” and that during the struggle they fell from the bed
to the floor. Caylor told the officers that he then unplugged the phone cord from the wall and wrapped it around her neck. The officers

as ked whether Melinda was moving when he began to strangle her with the cord, and Caylor responded: “Well, yeah, it was like no, no,” When he thought Melinda was dead, he released her and plugged the phone cord back into the wall. He then lifted up the matt ress and placed Melinda and her clothes under the bed. He said that he gathered his things and left the room. Detective Smith asked Caylor why he decided to kill Melinda:

[Detective Smith:] Well, is your thoughts that now I ’ ve had sex
with her she ’ s g oing to tell? Is that what led to that she has to die?

[Caylor:] No, it wasn ’ t like that, no, it wasn ’ t like that, it was just like, it was like, more or less like you ’ re the fucking reason why- 6

-

I ’ m in this situation I ’ m in now because I did the right thing. I think it was more of a hate, like a hate, like I was really angry, I think is what
it was.

[Detective Smith:] A hate for her or a hate the fact [sic] that
she ’ s 13 years old.

[Caylor:] That she was 13 coming on to me.

Caylor said that when Melinda came into his room, he was “all pissed off about everything that has happened, not to mention the fact of what just happened at Marina ’ s house.” He said that Melinda “just kind of walked up at the wrong, with, yo u know, with that same bull shit, man, at the wrong time.” At trial, the State called several witnesses to describe physical
evidence recovered from the crime scene. Brenda Pelfrey, a crime scene investigator, identified photographs of the motel room whe re the body was discovered. She stated that the victim ’ s clothes, which were found underneath the body, were not ripped or torn and that
there was no blood on the victim ’ s underwear. Pelfrey was also present during the autopsy, where she collected a sexu al assault kit. Trevor Seifert, a crime lab analyst, testified that he found Melinda ’ s DNA on portions of the phone cord removed from the motel room, and that Caylor was a possible contributor to scrapings taken from
under Melinda ’ s fingernails. Seifert also stated that vaginal swabs from the victim tested positive for blood and semen, and that Caylor ’ s DNA pro file matched these samples. The jury also heard testimony from Dr. Michael Hunter, the medical examiner who conducted the autopsy. Dr. Hunter sta ted that during the examination he observed considerable injuries to the
victim ’ s neck. He found that some of these injuries were consistent with strangulation by hand, while other straight

- line markings showed strangulation by ligature. He agreed that t he latter markings could have been inflicted through the use of a telephone cord. Dr. Hunter noted that there were multiple straight

- line abrasions, which indicated application and reapplication of the ligature. He determined that these markings were mos t likely inflicted while the victim was still alive. He also observed bleeding in the victim ’ s eyes, which provided further evidence of strangulation. Dr. Hunter ultimately concluded that the cause of death was strangulation. He said that the victim- 7

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wou ld have been in pain while she was conscious, and noted that there was no evidence of any head trauma that might have impaired her ability to feel pain or made her unaware of what was happening
around her. In addition to evidence of strangulation, Dr. Hun ter observed other injuries on the body, including a bruise on the victim ’ s arm, a small abrasion on her left ankle, and another large bruise that extended over the length of the left side of her clavicle. He said that there was considerable bleeding unde rneath the clavicle bruise. Additionally, Dr. Hunter observed discoloration in the victim ’ s pubic area, although he said that this injury could have occurred during
consensual sex. He noted that the victim was menstruating at the time of death, but found no indication as to whether she was sexually
active. He said that the victim ’ s blood tested positive for nicotine but negative for drugs or alcohol. After the jury convicted Caylor of all three charged offenses, a penalty proceeding was held. The State ’ s only witness at this proceeding was Thomas Shakitra, who testified that he was employed as a probation officer with the State of Georgia. Shakitra stated that in 2008, he was supe rvising Caylor, who was on felony probation. Following this testimony, the defense stipulated that Caylor had a prior felony conviction in Georgia. The defense called four witnesses during the penalty phase. The appellant ’ s parents, Kimberly and Kerry C aylor, testified that they were both addicted to amphetamines while the appellant was a child and that for a time the family had no money and lived in a trailer with no power. Both parents testified that the appellant had an abusive relationship with his father, began abusing drugs at a young age, and suffered from emotional problems. A third defense witness testified that he worked with the appellant as a mechanic in Jasper, Georgia, and described the appellant ’ s drug problems. The final
defense witness was a veterinarian who testified that Matthew Caylor
had worked in the kennel area of his office for several months. He stated that Caylor was a good employee and treated the animals well. At the end of the proceeding, the jury recommended the death pen alty by a vote of eight to four.
The trial court held a Spencer hearing on November 18, 2009. Caylor testified in his own defense and described the events preceding
the murder. He said that contrary to his initial statement to the police,
he had used a large amount of drugs on the day of the homicide. He- 8

-

stated that he decided to have sex with Melinda because he was angry about the fact that he had been on probation for eight years for an offense he did not commit, and that he was angry because he found
himself in a similar situation with a thirteen

- year

- old girl. He said that he did not rape Melinda and that he was remorseful for killing
her. In its written sentencing order, the trial court found and assigned weight to the following aggravating circum stances: (1) the capital felony was committed by a person previously convicted of a felony and under a sentence of imprisonment or placed on community control or on felony probation (great weight); (2) the capital felony
was committed while the defendant w as engaged in the commission of sexual battery and aggravated child abuse (great weight); and (3) the capital felony was especially heinous, atrocious, or cruel (“HAC”) (great weight). The court found the following mitigating circumstances: (1) dysfunctio nal family (little weight); (2) under the influence of an extreme mental or emotional disturbance (some weight); (3) compassionate to animals and good employee (little weight); (4) learning difficulties (very little weight); and (5) remorse (little weight)

. The trial court concluded that the nature and quality of the mitigating factors “pale[d] in comparison” to the enormity of the aggravating circumstances. Furthermore, the court determined that the aggravating circumstances clearly and convincingly outw eighed the mitigating factors. Based on these determinations, the trial court imposed a sentence of death.

Id. at 486

- 91 (footnotes omitted). On appeal, Caylor raised six claims 1 and this

1 . Caylor argued: (1) the trial court erred in denying his motion for judgment of acquittal on the offense of aggravated child abuse; (2) the trial court erred in denying his motion for judgment of acquittal on the offense of sexual battery involving great force; (3) the trial court erred in finding as an aggravating circumstance that he committed the murder while on felony probation; (4) the trial court erred in assigning “little weight” to the “dysfunctional family” and “remorse” mitigating circumstances; (5) death is a disproportionate punishment; (6) Florida’s death penalty is unconstitutional under the holding of Ring v. Arizona , 536 U.S. 584 (2002). Caylor , 78 So. 3d at 491.- 9

-

Court affirmed the convictions and sentences. Id. at 502. The Un ited States

Supreme Court denied certiorari on May 14, 2012. Caylor v. Florida , 132 S. Ct.

2405 (2012).

On May 2, 2013, Caylor filed his original postconviction motion. The

motion raised six claims. 2 On August 7, 2013 the court conducted a Huff 3 hearing

and summarily denied claim 1 (in part) and claim 3 (in part), with the court

reserving ruling on whether claim 4 required further evidentiary consideration.

The court granted an evidentiary hearing on claim 1 (in part), regarding Juror

Marianne M oore, claim 2, regarding counsel’s failure to investigate and present

mitigation evidence during the penalty phase and claim 3 (in part), regarding

counsel’s failure to have a mental health professional testify with respect to

Caylor’s mental state during the penalty phase. The remaining claims were to be

2 . Caylor argued: (1) trial counsel was ineffective during voir dire for
f ailing to challenge jurors, properly inquire of them, and to move to strike the entire panel; (2) trial counsel was ineffective during the penalty phase for failing to investigate and present mitigation evidence; (3) trial counsel was ineffective during
th e penalty phase for failing to use a mental health expert to present evidence of mental health mitigation; (4) denial of constitutional rights due to Rule of
Professional Conduct 4

- 3.5(d)(4) prevented trial counsel from interviewing jurors
and is unconstit utionally vague; (5) execution by lethal injection violates the Eighth Amendment prohibition against cruel and unusual punishment; and (6)
cumulative error.

3

. Huff v. State , 622 So. 2d 982 (Fla. 1993).- 10

-

resolved without an evidentiary hearing. The evidentiary hearing t ook plac e on

June 1

– 2, 2015. Following the evidentiary hearing, the court filed a final order

denying Caylor’s postconviction motion on Sept ember 9, 2015. This appeal

followed.

RULE 3.851 MOTION ON APPEAL

Caylor has raised the following five issues on this appeal: (1) trial counsel

was ineffective for his investigation and presentation of mitigation evidence at the

penalty phase; (2) tr ial counsel was ineffective for not ensuring that Caylor receive

a reasonably competent mental health evaluation for mitigation; (3) the trial court

erred in summarily denying Caylor’s claim that counsel was ineffective for failing

to challenge Juror Weave r; (4) the trial court erred in summarily denying the claim

that trial counsel was ineffective for failing to ask any of the juror s about their

views on mental health, addiction, remorse, rehabilitation, mercy, experts, or any

other potential mitigation ; a nd (5) cumulative error. Because we find that Caylor

is entitled to a new penalty phase, we only address issue three concerning Juror

Weaver

. As to this issue , we affirm the trial court’s ruling and its denial of

Caylor’s postconviction motion.

Juror Weaver

Caylor argues that the trial court erred in summarily denying that counsel

was ineffective for failing to challenge Juror Weaver. According to Caylor, Juror- 11

-

Weaver indicated that she was not sure if she could be impartial, knew one of the

witnesse s, and was once the victim of a crime. The postconviction court

summarily denied this claim, finding that Caylor failed to show that an actually

biased juror sat on the jury panel.

A defendant is entitled to an evidentiary hearing on a postconviction mot ion

unless: (1) the motion, files, and records in the case conclusively show that the

movant is entitled to no relief, or (2) the motion or particular claim is legally

insufficient. Valentine v. State , 98 So. 3d 44 , 54 (Fla. 2012). A postconviction

court ’s decision on whether to grant an evidentiary hearing is a pure question of

law, reviewed de novo. Mann v. State , 112 So. 3d 1158, 1162 (Fla. 2013). For a

defendant to show that his trial counsel was ineffective during the jury s election

process for failing to remove a juror from the panel, that defendant must show that

an actually biased juror sat on his jury. Carratelli v. State , 961 So. 2d 312, 324

(Fla. 2007).

In support of his claim, Caylor relies on the following colloquy with J uror

Weaver:

THE COURT: No. Hav e you ever been a victim of crime or the party
in a lawsuit?
JUROR WEAVER: I had a wallet stolen.
THE COURT: Okay, would that affect your ability to sit on this case?
JUROR WEAVER: This one might.
THE COURT: Pard on?
JUROR WEAVER: This might.- 12

-

THE COURT: Okay. Do you think because of that, you wouldn’t be
able to sit on this case or other reasons?
JUROR WEAVER: I can sit.
THE COURT: Okay. Let’s see. Have you had any experiences with the State Attorney’s o ffice or law enforcement that would influence your decision?
JUROR WEAVER: No, ma’am.

. . . . THE COURT: And do you feel that you could be fair and impartial
on this case?
JUROR WEAVER: I might.
THE COURT: Pardon?
JUROR WEAVER: I might.
THE COURT: You might. You’re not sure?
JUROR WEAVER: No ma’am.

Caylor also relies on questioning by the State during voir dire that revealed that

one of the witnesses, Margaret Davis, was the aunt of Juror Weaver’s two

daughters:

JUROR WEAVER: Margaret Davis.
MS. BASFORD: Margaret Davis, yes, ma’am. You know Ms.
Davis?
JUROR WEAVER: Yes.
MR. BASFORD: How do you know Ms. Davis?
JUROR WEAVER: The lady who worked at the hotel?
MR. BASFORD: Yes, ma’am.
JURO R WEAVER: She’s my two daughte r s ’ aunt. MR. BASFORD: Excuse me?
JUROR WEAVER: She’s my two daughters ’ aunt.
MR. B ASFORD: She’s your two daughter s ’ aunt?
JUROR WEAVER: Uh huh.
MR. BASFORD: Oh, okay, okay. Well, she is going to be a witness in this case. Now, my question is, usually we don’t have peop le that are, you know, that closely related. Do you see her that often,
ma’am?
JUROR WEAVER: No.- 13

-

MR. BASFORD: Okay. If she testifies, and well, there’s no if, she is going to testify, Good Lord willing she’s going to testify , could you weigh and evaluate her testimony as you would that of the other
witnesses in this case?
JUROR WEAVER: Yes.
MR. BASFORD: The Judge will give you some criteria to judge the witnesses’ testimony. But you could do that?
JUROR WEAVER: Yes, sir.

We agree with the postconviction court’s determination and find that the

record refutes any claim that an actually biased juror sat on the jury. In regards to

Juror Weaver’s comment that she was not sure if she could be impartial, Mr.

Basford later rehabilitated her through the following exchange:

MR. BASFORD: All right. I’ve got a question mark down here whether or not you could be impartial. How do you feel about it after sitting here this far in this case?
JUROR WEAVER: I’m in favor o f the death penalty.
MR. BASFORD: Okay.
JUROR WEAVER: In some cases.
MR. BASFORD: In some cases you’re in favor of the death penalty. Do you think you can be fair and impartial in this case?
JUROR WEAVER: Yes , sir

.

Additionally, Juror Weaver stated that in regard to Margaret Davis, she would

weigh and evaluate her testimony as she would the other witnesses. She also stated

that she did not see Margaret Davis that often. As evidenced by the record, trial

counsel was not ineffective because Ju ror Weaver clearly indicated that she could

be fair and impartial, and there is no evidence that she was actually biased.

Consequently, we deny relief as to this claim.- 14

- HABEAS PETITION

Caylor raises three claims in his petition for writ of habeas corpus filed with

this Court. He contends that (1) section 775.082(2) requires that all death

sentenced capital felons receive life sentences without parole; (2) he is entitled to a

new penalty phase under Hurst v. Florida

, 136 S. Ct. 616 (2016)

, because the jury

verdict at the sentencing phase was not unanimous; and (3) appellate counsel

provided ineffective assistance of counsel by failing to raise an Ake v. Oklahoma

,

470 U.S. 68 (1985)

, claim on direct appeal. As mentioned previously, we find

m erit in Caylor’s second claim and grant him a new penalty phase.

Application of Hurst v. Florida

Caylor argues that he is entitled to a new penalty phase under Hurst v.

Florida

, because the jury verdict at the sentencing phase was not unanimous.

Durin g the pendency of Caylor’s case, the United States Supreme Court found

Florida’s death penalty scheme unconstitutional

. Hurst v. Florida , 136 S. Ct. at

619. We have interpreted Hurst v. Florida to require a jury to unanimously find

each aggravating facto r, that the aggravating factors are sufficient to warrant death,

and that the aggravating factors outweigh the mitigation. See Hurst v. State

, 202

So. 3d 40, 57

- 58, 66

- 69 (Fla. 2016). We have also determined that most

defendants sentenced to death after the Ring decision should receive the benefit of- 15

-

Hurst

. See Mosley v. State

, 209 So. 3d 1248 (Fla. 2016) . Caylor, whose sentence

was final in 2012, is one such defendant.

Because Hurst applies to Caylor, we must consider whether it is clear

beyond a re asonable doubt that a rational jury would have unanimously found all

the facts necessary for the imposition of death and unanimously recommended

death, such that any Hurst error is harmless. See Mosley

, 209 So. 3d at 1284 . In

this case, the jury’s recommendatio ns of death were not unanimous and the jury

made no findings concerning the aggravating and mitigating circumstances. The

jury recommended death for the murder of Melinda Hinson by a vote of eight to

four. Therefore, we cannot conclude that the error in Caylor’s penalty phase was

harmless beyond a reasonable doubt. Accordingly, Caylor is entitled to a new

penalty phase. 4

Section 775.082(2)

Caylor also argues that section 775.082(2) , Florida Statutes ( 2016 )

, requires

that all death sentenced capital felons receive life sentences without parole. We

previously rejected this claim in Hurst

. Hurst , 202 So. 3d at 65 (“[W]e conclude

that the statute does not mandate automatic commutation to life sentences after the

4 . Because we find that Caylor is entitled to a new penalty phase, we do not address Caylor’s argument that appellate counsel was ineffective for failing to raise

an Ake claim on direct appeal.- 16

-

decision in Hurst v. Florida .”)

. Therefore, we deny Caylor’s claim that he is

entitled to a life sentence under section 775.082(2).

CONCLUSION

For the reasons stated above, we affirm the trial court’s denial of

postconviction relief. However, we grant Caylor habeas relief, vacate hi s death

sentence as unconstitutional under Hurst , and remand to the trial court 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

senten ce pursuant to Hurst

.

CANADY and LAWSON, JJ., concur.

An Appeal from the Circuit Court in and for Bay County, James Ball Fensom, Judge

- Case No. 032008CF002244XXAXMX And an Original Proceeding

– Habeas Corpus

Michael P. Reiter, Ocala, Florida,

for Appellant/Petitioner- 17

-

Pamela Jo Bondi, Attorney General, Tallahassee, Florida; and Marilyn Muir Beccue, Assistant Attorney General, Tampa, Florida,

for Appellee/Respondent