Supreme Court of Florida
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No. SC18-175
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FRED ANDERSON, JR.,
Appellant,
vs.
STATE OF FLORIDA,
Appellee.
October 4, 2018
PER CURIAM.
Fred Anderson, Jr., a prisoner under sentence of death, appeals the circuit
court’s order denying his successive motion for postconviction relief, which was
filed under Florida Rule of Criminal Procedure 3.851. We have jurisdiction. See
art. V, § 3(b)(1), Fla. Const.
In 1999, a jury convicted Anderson of first-degree murder, attempted first-
degree murder, robbery with a firearm, and grand theft of a firearm. After hearing
evidence during the penalty phase, the jury unanimously recommended a sentence
of death for the first-degree murder by a vote of twelve to zero. We affirmed
Anderson’s convictions and sentence of death on direct appeal. Anderson v. State,
863 So. 2d 169 (Fla. 2003). We also affirmed the denial of his initial motion for
postconviction relief and denied his petition for writ of habeas corpus. Anderson v.
State, 18 So. 3d 501 (Fla. 2009).
In January 2017, Anderson filed a successive postconviction motion to
vacate his death sentence in light of the decision of United States Supreme Court in
Hurst v. Florida, 136 S. Ct. 616 (2016), and this Court’s decision in Hurst v. State
(Hurst), 202 So. 3d 40 (Fla. 2016), cert. denied, 137 S. Ct. 2161 (2017). The
postconviction court granted Anderson’s request for an evidentiary hearing, which
was held on July 28, 2017. The postconviction court issued an order denying relief
on November 17, 2017. Anderson moved for rehearing, which the postconviction
court denied on December 29, 2017, the same day on which the court entered an
amended order denying relief. This appeal follows.
Anderson argues the Hurst error in his case was not harmless despite the
jury’s unanimous recommendation for death and that the postconviction court
erred in denying his successive motion. As we have previously explained, “a
jury’s unanimous recommendation of death is ‘precisely what we determined in
Hurst to be constitutionally necessary to impose a sentence of death’ because a
‘jury unanimously f[inds] all of the necessary facts for the imposition of [a] death
sentence[ ] by virtue of its unanimous recommendation[ ].’ ” Everett v. State, 43
Fla. L. Weekly S250, S250, 2018 WL 2355339 (Fla. May 24, 2018) (quoting Davis
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v. State, 207 So. 3d 142 (Fla. 2016), cert. denied, 137 S. Ct. 2218 (2017)). This
Court has “consistently relied on Davis to deny Hurst relief to defendants who
have received a unanimous jury recommendation of death.” Everett, 43 Fla. L.
Weekly at S250.
As previously discussed, Anderson received a unanimous jury
recommendation of death. Neither the jury instructions provided in this case, nor
the aggravators and mitigators found by the trial court, nor the facts of the case
compel departing from our precedent. We conclude any Hurst error in this case
was harmless beyond a reasonable doubt, and Anderson is therefore not entitled to
relief.
Anderson also contends that a unanimous jury recommendation violates the
Eighth Amendment pursuant to Caldwell v. Mississippi, 472 U.S. 320 (1985),
when a jury is told that its role is advisory. However, we have “repeatedly rejected
Caldwell challenges to the advisory standard jury instructions . . . [and] expressly
rejected these post-Hurst Caldwell claims.” Hall v. State, 246 So. 3d 210 (Fla.
2018) (plurality opinion); see also Reynolds v. State, 43 Fla. L. Weekly S163,
S169, 2018 WL 1633075 (Fla. Apr. 5, 2018) (plurality opinion) (“Hurst-induced
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Caldwell claims against the standard jury instruction do not provide an avenue for
Hurst relief.”). Therefore, Anderson is not entitled to relief on this claim either.1
Accordingly, because we conclude any Hurst error in this case was harmless
beyond a reasonable doubt, and the remaining claims are similarly without merit,
we affirm the postconviction court’s order denying Anderson’s successive motion
for postconviction relief.
It is so ordered.
PARIENTE, LEWIS, QUINCE, POLSTON, LABARGA, and LAWSON, JJ.,
concur.
CANADY, C.J., concurs in result.
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND,
IF FILED, DETERMINED.
An Appeal from the Circuit Court in and for Lake County,
G. Richard Singeltary, Judge - Case No. 351999CF000572AXXXXX
James Vincent Viggiano, Jr., Capital Collateral Regional Counsel, Maria E.
DeLiberato, Julissa R. Fontán, Chelsea Shirley, and Kara Ottervanger, Assistant
Capital Collateral Regional Counsel, Middle Region, Temple Terrace, Florida,
for Appellant
Pamela Jo Bondi, Attorney General, Tallahassee, Florida, and Patrick Bobek,
Assistant Attorney General, Daytona Beach, Florida,
for Appellee
1. We likewise reject Anderson’s argument that he is entitled to a new
proportionality analysis with respect to his death sentence.
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