Supreme Court of Florida

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No. SC17-1542

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STATE OF FLORIDA,

Appellant,

vs.

JOSEPH P. SMITH, 

Appellee.

[April 5, 2018]

PER CURIAM.

This case is before the Court on appeal from an order granting a successive 

motion to vacate a sentence of death under Florida Rule of Criminal Procedure 

3.851. Because the order concerns postconviction relief from a sentence of death, 

we have jurisdiction. Art. V, § 3(b)(1), Fla. Const. 

FACTS AND BACKGROUND

This Court has previously detailed the gruesome facts of this case. Smith v. 

State (Smith I), 28 So. 3d 838, 844-53 (Fla. 2009). Relevant to the instant 

proceeding, Joseph Smith was convicted of first-degree murder, kidnapping, and 

capital sexual battery of eleven-year-old Carlie Jane Brucia and was sentenced to 
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death. Id. at 844. After a penalty phase, the jury recommended a death sentence 

by a vote of ten to two. Id. at 851.1 On direct appeal, we held that the trial court’s 

 

1. As we stated in Smith I,

The trial court determined that the State had proven beyond a 

reasonable doubt the existence of six statutory aggravators: (1) Smith 

committed the felony while he was on probation, see § 921.141(5)(a), 

Fla. Stat. (2003) (moderate weight); (2) the murder was committed 

while Smith was engaged in the commission of a sexual battery or 

kidnapping, see § 921.141(5)(d), Fla. Stat. (2003) (significant weight);

(3) the murder was committed for the purpose of avoiding lawful 

arrest, see § 921.141(5)(e), Fla. Stat. (2003) (great weight); (4) the 

murder was especially heinous, atrocious or cruel (HAC), see

§ 921.141(5)(h), Fla. Stat. (2003) (great weight); (5) the murder was 

cold, calculated, and premeditated (CCP), see § 921.141(5)(i), Fla. 

Stat. (2003) (great weight); and (6) the victim was under twelve years 

of age, see § 921.141(5)(l ), Fla. Stat. (2003) (great weight).

The trial court concluded that Smith had failed to prove the 

existence of any statutory mitigating circumstances. The trial court 

found a total of thirteen non-statutory mitigating circumstances: (1) a 

long and well-documented history of mental illness (moderate 

weight); (2) a long and well-documented history of drug abuse 

(moderate weight); (3) longstanding severe pain from back injuries 

that contributed to his addiction (little weight); (4) Smith repeatedly 

sought help for his problems (little weight); (5) Smith was repeatedly 

denied treatment or received inadequate treatment (little weight); (6) 

positive qualities, including—(a) skills as a mechanic, plumber, and 

carpenter; (b) performance of kind deeds for others; (c) love and 

support with his family; (d) despite his incarceration, attempts to exert 

a positive influence on family members; (e) artistic skills; and (f) he 

cares about animals (moderate weight); (7) providing information that 

led to the resolution of this case (very little weight); (8) his family 

assisted law enforcement with Smith’s knowledge and cooperation 

(slight weight); (9) demonstration of spiritual growth (moderate 

weight); (10) maintenance of gainful employment (slight weight); (11) 

he is a loving father to his three daughters (moderate weight); (12) 
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finding of the CCP aggravator was not supported by competent, substantial 

evidence and thus the CCP aggravator was stricken. Id. at 868. Nevertheless, we

ultimately affirmed Smith’s convictions and sentence. Id. at 878. The United 

States Supreme Court denied certiorari review on June 28, 2011. Smith v. Florida, 

564 U.S. 1052 (2011). 

Smith subsequently filed a motion for postconviction relief raising numerous 

challenges, including a Ring2challenge, which the postconviction court summarily 

denied. Smith v. State (Smith II), 151 So. 3d 1177, 1181 (Fla. 2014). Smith 

appealed to this Court, and we affirmed the denial of postconviction relief. Id. at 

1184. Next, Smith filed a petition for writ of habeas corpus in the United States 

District Court for the Middle District of Florida, which was stayed as of July 15, 

2016. 

On January 5, 2017, after the issuance of Hurst v. Florida, 136 S. Ct. 616 

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

(2017), and its progeny, Smith filed this Successive Motion to Vacate Death 

Sentence, which the postconviction court granted with regard to the claim that 

 

remorse (little weight); and (13) he is amenable to rehabilitation and a 

productive life in prison (little weight).

28 So. 3d at 852-53 (footnotes omitted). 

2. Ring v. Arizona, 536 U.S. 584 (2002). 
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Smith is entitled to a new penalty phase. The State’s appeal followed. On 

September 19, 2017, this Court issued an order to show cause why the lower 

court’s order should not be affirmed based on this Court’s precedent in Hurst, 

Davis v. State, 207 So. 3d 142 (Fla. 2016), and Mosley v. State, 209 So. 3d 1248 

(Fla. 2016), to which the parties responded. 

ANALYSIS

Smith contends that he is entitled to relief pursuant to the United States 

Supreme Court’s opinion in Hurst v. Florida, which held that Florida’s capital 

sentencing scheme was 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.” 136 S. Ct. at 619. On remand, this 

Court held that a unanimous jury recommendation for death is required before the 

trial court may impose a sentence of death. Hurst, 202 So. 3d at 54. Moreover, 

this Court held that “in addition to unanimously finding the existence of any 

aggravating factor, the jury must also unanimously find that the aggravating factors 

are sufficient for the imposition of death and unanimously find that the aggravating 

factors outweigh the mitigation before a sentence of death may be considered by 

the judge.” Id. We also determined that Hurst error is capable of harmless error 

review. Id. at 67.
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Hurst applies retroactively to defendants whose sentences became final after 

the United States Supreme Court issued its decision in Ring. Mosley, 209 So. 3d at 

1283. Thus, Hurst applies retroactively to this case, which became final in 2011.

Accordingly, we must determine whether the Hurst error during Smith’s 

penalty phase proceeding was harmless beyond a reasonable doubt. “[I]n 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 jury’s failure to unanimously 

find all the facts necessary for imposition of the death penalty did not contribute to 

[the] death sentence . . . .” Hurst, 202 So. 3d at 68. 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 

that each aggravating factor was proven beyond a reasonable doubt, that the 

aggravating factors were sufficient to impose death, and that the aggravating 

factors outweighed the mitigating circumstances.

We conclude that the State cannot establish that the error in Smith’s case 

was harmless beyond a reasonable doubt. In Smith’s case, the jury did not make 

the requisite factual findings and did not unanimously recommend a sentence of 

death. Instead, the jury recommended the sentence of death by a vote of ten to 

two. Therefore, this Court has no way of knowing if the jury unanimously found 

any of the five valid aggravating factors—(1) Smith committed the felony while he 
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was on probation; (2) the murder was committed while Smith was engaged in the 

commission of a sexual battery or kidnapping; (3) the murder was committed for 

the purpose of avoiding lawful arrest; (4) HAC; and (5) the victim was under 

twelve years of age—that the aggravating factors were sufficient to impose a death 

sentence, or whether the aggravating factors outweighed the mitigating 

circumstances. Further, this Court cannot speculate why the two jurors who voted 

to recommend a sentence of life imprisonment determined that a sentence of death 

was not the appropriate punishment. Thus, in line with our post-Hurst precedent,3

we conclude that the Hurst error in Smith’s case was not harmless beyond a 

reasonable doubt. Accordingly, we vacate Smith’s sentence of death and remand 

for a new penalty phase.

 

3. E.g., Mosley, 209 So. 3d 1248 (granting Hurst relief for nonunanimous 

jury recommendation, post-Ring defendant); Peterson v. State, 221 So. 3d 571 

(Fla. 2017) (same); Bevel v. State, 221 So. 3d 1168 (Fla. 2017) (same); Snelgrove 

v. State, 217 So. 3d 992 (Fla. 2017) (same); Newberry v. State, 214 So. 3d 562 

(Fla. 2017) (same); Orme v. State, 214 So. 3d 1269 (Fla. 2017) (same); Baker v. 

State, 214 So. 3d 530 (Fla. 2017) (same); Deviney v. State, 213 So. 3d 794 (Fla. 

2017) (same); Jackson v. State, 213 So. 3d 754 (Fla. 2017) (same); Smith v. State, 

213 So. 3d 722 (Fla. 2017) (same); Hodges v. State, 213 So. 3d 863 (Fla. 2017) 

(same); Anderson v. State, 220 So. 3d 1133 (Fla. 2017) (same); Ault v. State, 213 

So. 3d 670 (Fla. 2017) (same); Dubose v. State, 210 So. 3d 641 (Fla. 2017) (same); 

Hojan v. State, 212 So. 3d 982 (Fla. 2017) (same); Durousseau v. State, 218 So. 3d 

405 (Fla. 2017) (same); Calloway v. State, 210 So. 3d 1160 (Fla. 2017) (same); 

McGirth v. State, 209 So. 3d 1146 (Fla. 2017) (same); Williams v. State, 209 So. 

3d 543 (Fla.) (same), cert. denied, 137 S. Ct. 2302 (2017); Armstrong v. State, 211 

So. 3d 864 (Fla. 2017) (same); Kopsho v. State, 209 So. 3d 568 (Fla. 2017) (same). 
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CONCLUSION

Therefore, we affirm the postconviction court’s order granting Smith 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., dissents with an opinion. 

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, 

IF FILED, DETERMINED.

LAWSON, J., dissenting.

See Pagan v. State, 235 So. 3d 317, 319-20 (Fla. 2018) (Lawson, J., 

dissenting). 

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

Charles E. Roberts, Judge - Case No. 582004CF002129XXXANC

Pamela Jo Bondi, Attorney General, Tallahassee, Florida, and Christina Z. 

Pacheco, Assistant Attorney General, Tampa, Florida, 

for Appellant

James Vincent Viggiano, Jr., Capital Collateral Regional Counsel, Ann Marie 

Mirialakis and Ali A. Shakoor, Assistant Capital Collateral Regional Counsel, 

Middle Region, Temple Terrace, Florida,

for Appellee