Supreme Court of Florida

____________

No. SC17-1687

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CARY MICHAEL LAMBRIX,

Appellant,

vs.

STATE OF FLORIDA,

Appellee.

[September 29, 2017]

PER CURIAM.

On September 1, 2017, when Governor Scott rescheduled Lambrix’s 

execution for October 5, 2017, Lambrix’s eighth successive postconviction motion 

was pending in the circuit court. The gist of Lambrix’s motion was an attack on 

the constitutionality of his death sentences based on the jury’s nonunanimous 

recommendations for death. On September 5, 2017, the circuit court denied 

Lambrix’s motion. On September 20, 2017, the circuit court denied Lambrix’s 

motion for rehearing. In light of the pending execution date, we expedited the 

appeal. Based on our precedent, we affirm the circuit court’s denial of Lambrix’s 

eighth successive postconviction motion.
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Lambrix challenges the constitutionality of his sentences of death, which 

were imposed following the jury’s nonunanimous recommendations for death. 

Specifically, Lambrix claims a right to relief based on the United States Supreme 

Court’s decision in Hurst v. Florida, 136 S. Ct. 616 (2016), and this Court’s 

opinions in Hurst v. State, 202 So. 3d 40 (Fla. 2016), cert. denied, 137 S. Ct. 2161 

(2017), and Perry v. State, 210 So. 3d 630 (Fla. 2016). He argues on appeal that:

(1) his sentences of death are unconstitutional under chapter 2017-1, Laws of 

Florida, which requires a unanimous jury recommendation for death; (2) his former 

claims of newly discovered evidence must be reconsidered in light of Hurst v. 

Florida and Hurst; (3) his death sentences violate the Eighth Amendment; and 

(4) this Court’s decisions regarding the retroactivity of Hurst v. Florida and Hurst

violate equal protection.

While it is true that the jury nonunanimously recommended death for the 

1983 murders of the two victims,

1 Lambrix’s sentences were final in 1986. See

Lambrix v. State, 217 So. 3d 977, 989 (Fla.), petition for cert. filed, No. 17-5539 

(U.S. Aug. 9, 2017). In this Court’s 2017 opinion in Lambrix’s case, we held that 

Lambrix “is not entitled to relief based on Hurst” for the reasons set forth in our 

 

1. The jury recommended a sentence of death for the murder of Aleisha

Bryant by a vote of 10-2 and death for the murder of Clarence Moore, a/k/a 

Lawrence Lamberson, by a vote of 8-4.
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opinion in Asay v. State (Asay V), 210 So. 3d 1 (Fla. 2016), cert. denied, No. 16-

9033, 2017 WL 1807588 (U.S. Aug. 24, 2017). Lambrix, 217 So. 3d at 989. 

To the extent Lambrix now raises additional claims to relief based on the 

rights announced in Hurst and Perry—including arguments based on the Eighth 

Amendment to the United States Constitution, denial of due process and equal 

protection based on the arbitrariness of this Court’s retroactivity decisions in 

Asay V and Mosley v. State, 209 So. 3d 1248 (Fla. 2016), and a substantive right 

based on the legislative passage of chapter 2017-1, Laws of Florida, prospectively 

requiring unanimous verdicts—we reject these arguments based on our recent 

opinions in Hitchcock v. State, 42 Fla. L. Weekly S753, 2017 WL 3431500 (Fla. 

Aug. 10, 2017), and Asay v. State (Asay VI), 42 Fla. L. Weekly S755, 2017 WL 

3472836 (Fla. Aug. 14, 2017). 

For all the reasons set forth in Lambrix, 217 So. 3d 977, Hitchcock, and 

Asay VI, we affirm the circuit court’s denial of Lambrix’s successive 

postconviction motion. 

It is so ordered. No rehearing will be entertained by this Court. The 

mandate shall issue immediately.

LABARGA, C.J., and LEWIS, CANADY, POLSTON, and LAWSON, JJ., concur.

PARIENTE, J., dissents with an opinion. 

QUINCE, J., recused.
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PARIENTE, J., dissenting.

I dissent. I would grant Lambrix a new penalty phase as a result of the 

jury’s nonunanimous recommendations for death in Lambrix’s case for the same 

reasons expressed in my recent dissenting opinions in Hitchcock2and Asay VI.

3

 

As I stated in my concurring in result opinion in Lambrix v. State, 217 So. 

3d 977 (Fla.), petition for cert. filed, No. 17-5539 (U.S. Aug. 9, 2017), “I would 

vacate Lambrix’s sentences of death and remand for a new penalty phase under 

Hurst.” Id. at 990 (Pariente, J., concurring in result). But, even if this Court’s 

opinion in Asay V4 precludes Lambrix from receiving the benefit of the Sixth 

Amendment protections announced in Hurst v. Florida and Hurst, I maintain that 

this Court has not properly determined the retroactivity of the Eighth Amendment 

rights announced in Hurst. See Hitchcock, 2017 WL 3431500, at *3-4 (Pariente, 

J., dissenting). 

As I stated in Hitchcock, “[f]or the same reasons I conclude that the right

announced in Hurst under the right to jury trial (Sixth Amendment and article I, 

 

2. Hitchcock v. State, 42 Fla. L. Weekly S753, 2017 WL 3431500, *3-4,

(Fla. Aug. 10, 2017) (Pariente, J., dissenting). 

3. Asay v. State (Asay VI), 42 Fla. L. Weekly S755, 2017 WL 3472836, *8 

(Fla. Aug. 14, 2017) (Pariente, J., dissenting).

4. Asay v. State (Asay V), 210 So. 3d 1 (Fla. 2016), cert. denied, No. 16-

9033, 2017 WL 1807588 (U.S. Aug. 24, 2017).
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section 22, of the Florida Constitution) requires full retroactivity, I would conclude 

that the right to a unanimous jury recommendation of death announced 

in Hurst under the Eighth Amendment requires full retroactivity.” Id. at *4. 

“Reliability is the linchpin of Eighth Amendment jurisprudence, and a death 

sentence imposed without a unanimous jury verdict for death is inherently 

unreliable.” Id. at *3. The statute under which Lambrix was sentenced, which 

only required that a bare majority of the twelve-member jury recommend a 

sentence of death, was unconstitutional, and therefore unreliable, under both the 

Sixth and Eighth Amendments. 

Like other defendants whose attorneys had the foresight to challenge 

Florida’s capital sentencing scheme years before Ring v. Arizona, 536 U.S. 584 

(2002),5 Lambrix—through his attorneys—challenged the constitutionality of 

Florida’s capital sentencing statute by raising arguments almost verbatim to those 

that were validated by the United States Supreme Court over thirty years later in 

Hurst v. Florida. In a pretrial Motion to Dismiss the Indictment, Lambrix argued:

Death sentences in Florida are imposed irregularly, unpredictably, and 

whimsically in cases which are no more deserving of capital 

punishment, under any rational standard that considers the character 

of the offender and the offense, than many other cases in which 

sentences of imprisonment are imposed. Inconsistent and arbitrary 

jury attitudes and sentencing verdicts, uneven and inconsistent 

 

5. See, e.g., Gaskin v. State, 218 So. 3d 399, 401-02 (Fla.), petition for cert. 

filed, No. 17-5669 (U.S. Aug. 21, 2017) (Pariente, J., concurring in part and 

dissenting in part).
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prosecutorial practices in seeking or not seeking the death penalty, 

divergent sentencing policies of trial judges and erratic appellate 

review by the Supreme Court of Florida all contribute to produce an 

irregular and freakish pattern of life or death sentencing results.

Motion to Dismiss the Indictment, State v. Lambrix, Case No. 83-12, at ¶ 13. 

Indeed, Lambrix’s attorneys made every argument they could to justify retroactive 

application of Hurst to Lambrix’s case long before Hurst was ever decided.6 See

Lambrix, 217 So. 3d at 990 (Pariente, J., concurring in result).

Denying Lambrix “relief when other similarly situated defendants have been 

granted relief amounts to a denial of due process.” Hitchcock, 2017 WL 3431500, 

at *3 (Pariente, J., dissenting). To avoid denying two of the most critical 

constitutional protections on the eve of the ultimate punishment, I would grant 

Lambrix a new penalty phase.

Accordingly, I dissent.

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

James D. Sloan, Judge - Case No. 221983CF000012CFAXMX

Neal A. Dupree, Capital Collateral Regional Counsel, William M. Hennis, III, 

Litigation Director, Martin J. McClain, Special Assistant Capital Collateral 

Regional Counsel, and Bryan E. Martinez, Staff Attorney, Southern Region, Fort 

Lauderdale, Florida,

for Appellant

Pamela Jo Bondi, Attorney General, Tallahassee, Florida, Scott A. Browne, Senior 

 

6. See Mosley v. State, 209 So. 3d 1248 (Fla. 2016); Asay V, 210 So. 3d at 

30 (Lewis, J., concurring in result).
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Assistant Attorney General, and C. Suzanne Bechard, Assistant Attorney General, 

Tampa, Florida,

for Appellee