Supreme Court of Florida

____________

No. SC13-819

____________

RODERICK MICHAEL ORME,

Appellant,

vs.

STATE OF FLORIDA,

Appellee.

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No. SC14-22

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RODERICK MICHAEL ORME,

Petitioner,

vs.

JULIE L. JONES, etc.,

Respondent.

[March 30, 2017]

REVISED OPINION

PER CURIAM.

Roderick Michael Orme appeals an order of the circuit court denying his 

motion to vacate his sentence of death, filed under Florida Rule of Criminal 

Procedure 3.851, and he petitions this Court for a writ of habeas corpus. We have 
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jurisdiction. See art. V, § 3(b)(1), (9), Fla. Const. For the reasons that follow, we

grant Orme a new penalty phase based on the United States Supreme Court’s 

decision in Hurst v. Florida, 136 S. Ct. 616 (2016), as interpreted by our decision 

in Hurst v. State, 202 So. 3d 40 (Fla. 2016), petition for cert. filed, No. 16-998 

(U.S. Feb. 13, 2017).

1

FACTS AND PROCEDURAL HISTORY

A full description of the facts of the instant case can be found in our opinion 

from Orme’s direct appeal. Orme v. State (Orme I), 677 So. 2d 258, 260-61 (Fla. 

1996). The facts relevant here are as follows. In March 1992, Orme was charged 

with premeditated or felony murder, robbery, and sexual battery in connection with 

the death of Lisa Redd, whose body was found in Orme’s motel room. Id. at 260. 

A jury convicted Orme on all three counts and recommended the death penalty by 

a vote of seven to five. Id. at 261. The trial judge followed the recommendation 

and sentenced Orme to death, finding three aggravating factors—committed during 

the course of a sexual battery; heinous, atrocious, or cruel (HAC); and committed 

for pecuniary gain. Id. In mitigation, the judge found both statutory mental health 

mitigators (substantial impairment and extreme emotional disturbance), giving 

 

1. We previously issued a decision in this case on December 10, 2015. 

While Orme’s rehearing was pending, we granted his motion to permit 

supplemental briefing. We withdraw our previous opinion and replace it with this 

opinion.
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them “some weight.” Id. We have previously described the procedural history of 

this case as follows:

On direct appeal, Orme raised eight issues. [n.1] This Court affirmed 

Orme’s conviction of first-degree murder and the sentence of death. 

[Orme I, 677 So. 2d at 261-64.] Orme filed a petition for writ of 

certiorari with the United States Supreme Court. That Court denied 

review on January 13, 1997. Orme v. Florida, 519 U.S. 1079 (1997).

[N.1] The following issues were raised: (1) the trial court 

should have directed a judgment of acquittal on grounds 

the case against him was circumstantial and the State had 

failed to disprove all reasonable hypotheses of innocence; 

(2) Orme’s statements to officers should have been 

suppressed on grounds he was too intoxicated with drugs 

to knowingly and voluntarily waive his right to silence; 

(3) death is not a proportionate penalty because Orme’s 

will was overborne by drug abuse, and because any fight 

between the victim and him was a “lover’s quarrel”; (4) 

Orme’s mental state at the time of the murder was such 

that he could not form a “design” to inflict a high degree 

of suffering on the victim; (5) the trial court erred by 

failing to weigh in mitigation the fact that Orme had no 

significant prior criminal history; (6) the trial court erred 

in declining to give a special instruction that acts 

perpetrated on the victim after her death are not relevant 

to [the HAC aggravato]r; (7) the instruction on [HAC]

violated the dictates of Espinosa v. Florida, 505 U.S. 

1079 (1992); and (8) Orme was incapable of forming the 

specific intent necessary for first-degree murder and this 

fact bars his death sentence under Enmund v. Florida,

458 U.S. 782 (1982).

Subsequently, Orme filed an amended motion for 

postconviction relief pursuant to Florida Rule of Criminal Procedure 

3.851, raising twenty-five claims. After an evidentiary hearing on 

four claims of ineffective assistance of trial counsel, the trial court 

denied relief. Orme appealed the denial of postconviction relief to 

this Court, raising three claims. [n.2] He also petitioned the Court for 
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a writ of habeas corpus, raising eight claims. [n.3] See [Orme v. State

(Orme II), 896 So. 2d 725, 737 (Fla. 2005)]. This Court found 

defense counsel ineffective for failing to further investigate Orme’s 

diagnosis of bipolar disorder with respect to the penalty phase. As a 

result, a new penalty phase was ordered. Id. [at 740-41].

[N.2] Orme argued that (1) the trial court erred in 

denying his ineffective assistance of counsel claim for 

trial counsel’s failure to present evidence of Orme’s 

diagnosis of bipolar disorder; (2) his death sentence is 

unconstitutional pursuant to Ring v. Arizona, 536 U.S. 

584 (2002), and its progeny; and (3) the general jury 

qualifications procedure in Bay County, where he was 

tried, was unconstitutional. [Orme II], 896 So. 2d 725 

(Fla. 2005).

[N.3] Three of the claims Orme raised were: (1) 

appellate counsel was ineffective for failing to raise on 

appeal the fact that Orme was involuntarily absent from 

two bench conferences, which he claims were critical 

stages of his trial; (2) appellate counsel was ineffective 

for failing to raise on appeal the claim that the prosecutor 

engaged in misconduct rendering the conviction and 

sentence fundamentally unfair; and (3) appellate counsel 

was ineffective for failing to raise on appeal the claim 

that the trial court erroneously allowed forty-three 

gruesome photographs to be shown to the jury. Orme 

raised five additional claims, all of which were found not 

to be properly raised in a habeas proceeding because they 

were either raised on direct appeal or in postconviction or 

should have been raised and were therefore procedurally 

barred. [Orme II, 896 So. 2d at 740].

In May 2007, a new penalty phase was conducted before a new 

jury, but before the original trial judge. By a vote of eleven to one, 

the new jury recommended a death sentence. The trial court followed 

the jury’s recommendation and sentenced Orme to death. The trial 

court found the following three statutory aggravating factors: (1) the 

capital felony was committed for pecuniary gain; (2) the capital felony 

was committed while the defendant was engaged in the commission 
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of, or an attempt to commit, or flight after committing or attempting to 

commit a sexual battery; and (3) the capital felony was especially 

heinous, atrocious, or cruel. The trial court also found three statutory 

mitigators: (1) the defendant had no significant criminal history (little 

weight); (2) the capital felony was committed while the defendant was 

under the influence of extreme mental or emotional disturbance (little 

weight); and (3) the capacity of the defendant to appreciate the 

criminality of his conduct or to conform his conduct to the 

requirements of the law was substantially impaired (little weight). 

The trial court also found that the following mitigation was either 

irrelevant to the murder or did not exist and, as a result, gave them no 

weight: (1) the age of the defendant; (2) a bipolar disorder contributed 

significantly to the defendant’s substance abuse; (3) the defendant had 

a difficult childhood; (4) the defendant is a model prisoner; (5) the 

defendant’s potential for rehabilitation; and (6) the defendant tried to 

get the victim help.

Orme v. State (Orme III), 25 So. 3d 536, 542-43 (Fla. 2009).

At resentencing, Orme was initially represented by Russell Ramey, who was 

appointed after the Public Defender’s Office certified to the court a conflict of 

interest and moved for appointment of separate counsel. Subsequently, attorneys 

Sarah Butters and George Schulz of Holland & Knight, LLP, filed a notice of 

appearance as co-counsel to Ramey. However, at a September 7, 2005, hearing, 

the trial court informed Butters and Schulz that their pro bono representation of 

Orme as co-counsel to Ramey could prompt Ramey’s withdrawal from the case, as 

the Justice Administrative Commission (JAC) would not pay for court-appointed 

counsel when private counsel had been obtained. Thus, on November 2, 2005, 

Butters and Schulz filed a motion for appointment of Michel Stone as co-counsel
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for Orme.2 A hearing was held on the motion on November 7, 2005, and the trial 

court conducted a colloquy with Orme, eventually appointing Stone as co-counsel

to Ramey.

Orme appealed the death sentence he received at resentencing to this Court, 

raising nine claims.3 Orme III, 25 So. 3d at 540, 543. We affirmed his sentence, 

finding no reversible error. Id. at 543-53. Orme then filed a petition for writ of 

certiorari with the United States Supreme Court, which that Court denied on June 

7, 2010. Orme v. Florida, 560 U.S. 956 (2010).

 

2. Stone had briefly represented Orme before the start of Orme’s original 

trial proceedings, when Stone left the Public Defender’s Office to enter private 

practice.

3. The nine claims were that the trial court erred in (1) refusing to allow 

Orme to challenge for cause prospective jurors who could not consider remorse as 

a mitigator; (2) refusing to allow him to inquire of prospective jurors whether they 

could consider recommending a life sentence as a matter of mercy even if the 

aggravators outweighed the mitigators; (3) failing to dismiss the venire after one 

prospective juror revealed that Orme had a prior conviction; (4) refusing to allow 

Orme to waive his right to the sentencing option of life in prison without the 

possibility of parole for twenty-five years in favor of a harsher punishment of life 

in prison without the possibility of parole; (5) failing to give weight to Orme’s 

difficult childhood, the fact that Orme was a model prisoner, Orme’s potential for 

rehabilitation, and Orme’s attempt to get the victim help; (6) finding that the 

pecuniary gain aggravator applied; (7) finding the HAC aggravator; and (8) finding 

that the “murder was committed in the course of a sexual battery” aggravator 

applied; and (9) that Orme’s death sentence violated Ring v. Arizona, 536 U.S. 584 

(2002). Id. at 543-53.
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On June 1, 2011, Orme filed the instant motion for postconviction relief, 

presenting four claims of ineffective assistance of counsel—that resentencing 

phase counsel rendered ineffective assistance by (1) violating the Sixth, Eighth, 

and Fourteenth Amendments; (2) failing to object to the prosecutor’s improper 

arguments at resentencing; (3) failing to preserve the trial court’s error in holding 

that a juror’s refusal to consider remorse as a mitigator could only be a basis for a 

peremptory challenge; and (4) failing to preserve the issue of the jury’s 

consideration of mercy in making its sentencing recommendation. He also raises 

two additional claims: that rules prohibiting Orme’s lawyers from interviewing 

jurors to discover constitutional error violate Orme’s constitutional rights and that 

Orme’s death sentence violates the Eighth Amendment. The State filed its 

response on July 26, 2011. The postconviction court granted an evidentiary 

hearing on Orme’s first claim only. The hearing began on April 30, 2012. On 

March 1, 2013, the court entered an order denying all of Orme’s postconviction 

claims.

Orme now appeals the denial of his motion, raising four claims of ineffective 

assistance of resentencing phase counsel4and one claim of ineffective assistance of 

 

4. These claims are the same as the first four claims presented to the 

postconviction court in Orme’s motion below—that resentencing phase counsel 

rendered ineffective assistance by (1) violating the Sixth, Eighth, and Fourteenth 

Amendments; (2) failing to object to the prosecutor’s improper arguments at 

resentencing; (3) failing to preserve the trial court’s error in holding that a juror’s 
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postconviction counsel. Orme also petitions this Court for a writ of habeas corpus, 

alleging that appellate counsel rendered ineffective assistance by failing to raise the 

following issues on appeal from the resentencing: (1) the use of restraints on Orme 

during resentencing; (2) the State’s participation in privileged discussions and 

communications of defense counsel in violation of the Equal Protection Clause;

and (3) improper arguments by the prosecutor at resentencing. 

ANALYSIS

Because Orme’s claims all relate to his resentencing and we determine that 

Orme is entitled to relief pursuant to Hurst, we do not address his other 

postconviction claims or the issues raised in his petition for a writ of habeas 

corpus. 

Hurst v. Florida and Hurst

In Hurst v. Florida, the United States Supreme Court declared our capital 

sentencing scheme unconstitutional because “[t]he Sixth Amendment requires a 

jury, not a judge, to find each fact necessary to impose a sentence of death. A 

jury’s mere recommendation is not enough.” Hurst v. Florida, 136 S. Ct. at 619. 

Pursuant to the Supreme Court’s decision in Hurst v. Florida, Orme filed a motion 

 

refusal to consider remorse as a mitigator could only be a basis for a peremptory 

challenge; and (4) failing to preserve the issue of the jury’s consideration of mercy 

in making its sentencing recommendation.
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to permit supplemental briefing. We granted the motion, and Orme now contends 

that he is entitled to relief under Hurst v. Florida because of his eleven-to-one jury 

vote recommending death. On remand from the United States Supreme Court we 

held that the jury must unanimously find the existence of each aggravating factor 

beyond a reasonable doubt, must unanimously find the aggravating factors are 

sufficient, and must unanimously find that the aggravating factors outweigh the 

mitigating circumstances. Hurst, 202 So. 3d at 53-54.

Thereafter, in Mosley v. State, 41 Fla. L. Weekly S629, 2016 WL 7406506

(Fla. Dec. 22, 2016), we determined that Hurst v. Florida and Hurst apply 

retroactively to defendants, like Orme, whose sentences were not yet final when 

the Supreme Court issued Ring. See Mosley, 2016 WL 7406506 at *25.

Because we conclude that Hurst applies to Orme, we next examine whether 

any Hurst error was harmless beyond a reasonable doubt. On remand from the 

United States Supreme Court, in Hurst we explained the appropriate standard for 

harmless error review:

Where the error concerns sentencing, the error is harmless only if 

there is no reasonable possibility that the error contributed to the 

sentence. See, e.g., Zack v. State, 753 So. 2d 9, 20 (Fla. 2000). 

Although the harmless error test applies to both constitutional errors 

and errors not based on constitutional grounds, “the harmless error 

test is to be rigorously applied,” [State v.] DiGuilio, 491 So. 2d 

[1129,] 1137 [Fla. 1986], and the State bears an extremely heavy 

burden in cases involving constitutional error. Therefore, in the 

context of a Hurst v. Florida error, the burden is on the State, as the 

beneficiary of the error, to prove beyond a reasonable doubt that the 
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jury’s failure to unanimously find all the facts necessary for 

imposition of the death penalty did not contribute to Hurst’s death 

sentence in this case. We reiterate:

The test is not a sufficiency-of-the-evidence, a correct 

result, a not clearly wrong, a substantial evidence, a more 

probable than not, a clear and convincing, or even an 

overwhelming evidence test. Harmless error is not a 

device for the appellate court to substitute itself for the 

trier-of-fact by simply weighing the evidence. The focus 

is on the effect of the error on the trier-of-fact.

DiGuilio, 491 So. 2d at 1139. “The question is whether there is a 

reasonable possibility that the error affected the [sentence].” Id.

Hurst, 202 So. 3d at 68 (alteration in original). As applied to the right to a jury 

trial with regard to the facts necessary to impose the death penalty, it must be clear 

beyond a reasonable doubt that a rational jury would have unanimously found all 

facts necessary to impose death and that death was the appropriate sentence.

Given the jury vote of eleven to one, it is impossible for this Court to 

determine which, if any, of the aggravators5the jury would have found 

unanimously if properly instructed. Moreover, we cannot determine whether the 

jury would have found “that there were sufficient aggravating factors to outweigh 

 

5. The trial court found three aggravating factors: (1) the capital felony was 

committed for pecuniary gain; (2) the capital felony was committed while the 

defendant was engaged in the commission of, or an attempt to commit, or flight 

after committing or attempting to commit a sexual battery; and (3) the capital 

felony was especially heinous, atrocious, or cruel. Orme II, 25 So. 3d at 542-43.
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the mitigating circumstances.” Id. Accordingly, we cannot conclude that the Hurst

error in this case was harmless beyond a reasonable doubt.

CONCLUSION

Based on the foregoing, we grant Orme’s supplemental claim for relief 

under Hurst and vacate his death sentence and remand this case for a new penalty 

phase.

It is so ordered.

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

CANADY and POLSTON, JJ., dissent.

LAWSON, J., did not participate.

NO MOTION FOR REHEARING WILL BE ALLOWED.

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

Brantley Scott Clark, Jr., Judge - Case No. 031992CF000442XXAXMX

And an Original Proceeding – Habeas Corpus 

Linda McDermott of McClain & McDermott, P.A., Estero, Florida,

for Appellant/Petitioner

Pamela Jo Bondi, Attorney General, and Jennifer L. Keegan, Assistant Attorney 

General, Tallahassee, Florida,

for Appellee/Respondent