Supreme Court of Florida
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No. SC15-1884
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LOUIS B. GASKIN,
Appellant,
vs.
STATE OF FLORIDA,
Appellee.
[January 19, 2017]
PER CURIAM.
This case is before the Court on appeal from an order denying appellant
Louis B. Gaskin’s motion to vacate a judgment for two convictions of first-degree
murder and two sentences of death under Florida Rule of Criminal Procedure
3.851. Because the order concerns postconviction relief from two capital
convictions for which two sentences of death were imposed, this Court has
jurisdiction of the appeal under article V, section 3(b)(1), Florida Constitution. For
the following reasons, we affirm Gaskin’s convictions and sentences.
The facts of this case were presented in this Court’s opinion on direct
appeal. Gaskin v. State, 591 So. 2d 917 (Fla. 1991). In 1989, Gaskin was
convicted of two counts of first-degree murder (premeditated and felony murder)
for the death of Robert Sturmfels, two counts of first-degree murder (premeditated
and felony murder) in the death of Georgette Sturmfels, one count of armed
robbery of the Sturmfels’ home, one count of burglary of the Sturmfels’ home, one
count of attempted first-degree murder of Joseph Rector, one count of armed
robbery of Joseph and Mary Rector, and one count of burglary of the Rectors’
home. Id. at 918. In 1990, after the penalty phase, the jury recommended two
death sentences for both murders by a vote of eight to four. Id. at 919. The trial
court sentenced Gaskin to death. Id. In 1991, this Court affirmed Gaskin’s
premeditated murder convictions and two death sentences, reversed the two felony
murder convictions that were duplicative of the premeditated murder convictions,
and remanded to the trial court for proceedings consistent with its decision. Id. at
922. In 1993, Gaskin’s sentences became final when the United States Supreme
Court denied certiorari review. Gaskin v. State, 510 U.S. 925 (1993). In 2002, this
Court affirmed the lower court’s denial of Gaskin’s initial motion for
postconviction relief. Gaskin v. State, 822 So. 2d 1243 (Fla. 2002). In 2014,
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pursuant to this Court’s 1991 directive, the lower court vacated one felony murder
conviction for each victim. In 2015, Gaskin filed his first successive motion to
vacate the judgment of conviction, challenging the premeditated murder
convictions and death sentences, and alleging that the jury’s use of both
premeditated murder and felony murder as aggravating circumstances amounted to
improper doubling of aggravators. The postconviction court summarily denied
Gaskin’s claims. Gaskin appealed to this Court, arguing that the postconviction
court erred in summarily denying his claim that his convictions should be vacated
because the jury considered two vacated convictions to recommend the death
sentences. Gaskin also argues that he is entitled to relief in light of the United
States Supreme Court’s decision Hurst v. Florida, 136 S. Ct. 616 (2016). For the
reasons below, we affirm the denial of postconviction relief.
Standard of Review
A successive rule 3.851 motion may be denied without an evidentiary
hearing if the records of the case conclusively show that the movant is not entitled
to relief. Reed v. State, 116 So. 3d 260, 264 (2013). This Court reviews the circuit
court’s decision to summarily deny a successive rule 3.851 motion de novo,
accepting the movant’s factual allegations as true to the extent that they are not
refuted by the record, and affirming the ruling if the record conclusively shows that
the movant is not entitled to relief. Id.
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Merits
Gaskin’s claim of improper doubling is untimely and procedurally barred
because the issue could have and should have been raised on direct appeal.
In general, a postconviction movant must file for relief “within 1 year after
[the movant’s] judgment and sentence become final.” Fla. R. Crim. P. 3.851(d)(1).
A judgment and sentence become final “on the disposition of the petition for writ
of certiorari by the United States Supreme Court, if filed.” Fla. R. Crim. P.
3.851(d)(1)(B). Gaskin argues that his judgment became final when the circuit
court issued the corrected judgment in 2014. This is contrary to rule 3.851:
Gaskin’s sentence became final in 1993, when the United States Supreme Court
denied certiorari review. Gaskin, 510 U.S. 936; see State v. Johnson, 122 So. 3d
856 (Fla. 2013) (Johnson’s sentence became final in 2000, when the United States
Supreme Court denied certiorari review).
Additionally, Gaskin’s claim is procedurally barred because Gaskin had the
opportunity to challenge not only his duplicative convictions on direct appeal but
to challenge his sentences on the basis that the jury erroneously considered the
doubled convictions in recommending two death sentences. See Dennis v. State,
109 So. 3d 680, 698 (Fla. 2012) (holding that claims were procedurally barred
because the movant could have raised them on direct appeal).
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Finally, Gaskin’s argues that he is entitled to relief in light of Hurst v.
Florida. Because Gaskin’s sentence became final in 1993, Gaskin is not entitled to
relief under Hurst v. Florida. See Asay v. State, No. SC16-223, 2016 WL 7406538
at *13 (Fla. Dec. 22, 2016) (holding that Hurst is not retroactive to cases that
became final before the United States Supreme Court decided Ring v. Arizona, 536
U.S. 584 (2002)). Accordingly, we affirm the circuit court’s order summarily
denying Gaskin’s successive postconviction motion.
It is so ordered.
LABARGA, C.J., and QUINCE, and POLSTON, JJ., concur.
CANADY, J., concurs in result.
PARIENTE, J., concurs in part and dissents in part with an opinion.
PERRY, Senior Justice, concurs in part and dissents in part with an opinion.
LEWIS, J., dissents.
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION, AND
IF FILED, DETERMINED.
PARIENTE, J., concurring in part and dissenting in part.
While I agree with the majority’s conclusion that Gaskin’s claim of
improper doubling is untimely and procedurally barred, I write separately to
express my disagreement with denying Gaskin relief under Hurst v. Florida1 and
Hurst.2 As I stated in my concurring in part and dissenting in part opinion in
1. Hurst v. Florida (Hurst v. Florida), 136 S. Ct. 616 (2016).
2. Hurst v. State (Hurst), 202 So. 3d 40 (Fla. 2016).
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Asay,3 fundamental fairness concerns emanating from the constitutional rights at
stake require us to hold Hurst fully retroactive to all death sentences imposed under
Florida’s prior, unconstitutional capital sentencing scheme. Asay, 2016 WL
7406538 (Fla. Dec. 22, 2016) (Pariente, J., concurring in part and dissenting in
part); see Hurst v. Florida, 136 S. Ct. at 622 (holding Florida’s capital sentencing
scheme unconstitutional). Thus, I would hold that Hurst applies retroactively to
Gaskin. Further determining that the Hurst error in Gaskin’s sentence was not
harmless beyond a reasonable doubt, I would grant Gaskin a new penalty phase.
Short of holding Hurst fully retroactive, I would at least apply Hurst to
Gaskin because he, through his attorneys, challenged the constitutionality of
Florida’s capital sentencing statute at trial in 1990 and, again, on direct appeal in
1991. This Court summarily rejected Gaskin’s claim on direct appeal, stating:
“We also reject without discussion Gaskin’s multiple assertions regarding the
constitutionality of the capital-sentencing statute as each of his arguments has
previously been decided adversely to his position.” Gaskin v. State, 591 So. 2d
917, 920 (Fla. 1991). Although our opinion did not detail Gaskin’s constitutional
challenges, the record on appeal reveals that Gaskin argued that “section
921.141 . . . was unconstitutional on its face” for the reasons espoused by the
3. Asay, 2016 WL 7406538 (Fla. Dec. 22, 2016).
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United States Supreme Court in Ring4 and Hurst v. Florida and then further
explained by this Court in Hurst:
[B]efore a sentence of death may be considered by the trial
court in Florida, the jury must find the existence of the aggravating
factors proven beyond a reasonable doubt, that the aggravating factors
are sufficient to impose death, and that the aggravating factors
outweigh the mitigating circumstances. These same requirements
existed in Florida law when Hurst was sentenced in 2012—although
they were consigned to the trial judge to make.
We also conclude that, just as elements of a crime must be
found unanimously by a Florida jury, all these findings necessary for
the jury to essentially convict a defendant of capital murder—thus
allowing imposition of the death penalty—are also elements that must
be found unanimously by the jury. Thus, we hold 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.
Hurst, 202 So. 3d at 53-54 (footnotes omitted).
Amid a myriad of arguments as to how Florida’s capital sentencing scheme
violated the fundamental rights of defendants facing the death penalty in Florida,
Gaskin specifically argued that the statute “does not require a sentencing
recommendation by a unanimous jury or a substantial majority of the jury and thus
results in the arbitrary and unreliable application of the death sentence and denies
4. Ring v. Arizona, 536 U.S. 584 (2002).
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the right to a jury and to due process of law.”5 Among Gaskin’s several motions,
filed through counsel,6 disputing the validity of Florida’s capital sentencing
scheme was a “Motion for Use of Special Verdict Form for the Unanimous Jury
Determination of Statutory Aggravating Circumstances,” citing among other
constitutional bases the Sixth Amendment to the United States Constitution and
article I, section 22, of the Florida Constitution. State v. Gaskin, No. 90-01/07/17
(Fla. May 10, 1990). Gaskin also filed a separate motion to declare
unconstitutional section 921.141, Florida Statutes, broadly arguing many of the
deficiencies in the statute that have now been recognized as constitutionally
impermissible, such as jury overrides and the bare majority jury recommendation.7
5. Gaskin v. State, No. SC76-326, Initial Br. of Appellant (Fla. Mar. 5,
1991), at 70; accord Gaskin v. State, Nos. 90-01; 90-07; 90-17, Motion to Preclude
Imposition of the Death Penalty (Flagler Cty. Cir. Ct. Fla. June 5, 1990), at 7
(“Section 921.141 . . . is unconstitutional on its face because the jury
recommendation need not be unanimous, thereby depriving the Defendant to the
rights to Due Process and to a unanimous jury verdict, in violation of Article I,
Section 9, 16 and 22 of the Florida Constitution and the Fifth, Sixth and Fourteenth
Amendments to the United States Constitution.”).
6. The constitutional arguments made on behalf of Gaskin were a product of
the advocacy of his lawyer Christopher S. Quarles, an assistant public defender and
a zealous advocate for his death penalty clients for decades.
7. Gaskin v. State, Motion to Preclude Imposition of the Death Penalty,
Nos. 90-01; 90-07; 90-17 (Flagler Cty. Cir. Ct. Fla. June 5, 1990), at 4 (“Section
921.141 . . . is unconstitutional on its face because a jury recommendation of life in
prison need not be followed by the trial court judge.”); id. at 5 (“Section 921.141 . .
. is unconstitutional on its face because it permits the trial judge to overrule a jury
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Most closely resembling Hurst v. Florida and Hurst, Gaskin argued that section
921.141 is facially unconstitutional because the “jury recommendation need not be
unanimous,” nothing “require[s] the court to instruct the jury that to return a
recommendation of death, the jury must be convinced beyond every reasonable
doubt that the aggravating circumstances outweigh the mitigating circumstances,”
“the jury is not required to list the specific aggravating circumstances they have
found beyond a reasonable doubt when they recommend the death penalty,” and “it
permits the trial judge to consider aggravating circumstances in imposing the death
sentence that the advisory jury may not have considered or that the advisory jury
may have rejected.” Id. at 7-9.8 Even without a finding a full retroactivity, under
Justice Lewis’s concurring in result opinion in Asay, Hurst would apply
retroactively to Gaskin under James v. State, 615 So. 2d 668 (Fla. 1993), because
Gaskin asserted, presented, and preserved a challenge to the lack of jury
factfinding in Florida’s capital sentencing procedure. Asay, 2016 WL 7406538, at
*20 (Lewis, J., concurring in result).
life recommendation, contrary to the clear expression of the conscience of the
community.” (citing McCaskill v. State, 344 So. 2d 1276, 1280 (Fla. 1977)).
8. See Gaskin v. State, Motion to Prohibit Any Reference to the Advisory
Role of the Jury, Nos. 90-01; 90-07; 90-17 (Flagler Cty. Cir. Ct. Fla. June 5, 1990),
at 2 (“Reference to the advisory role of the jury would deny the Defendant due
process of law and a fair trial . . . .”). See generally Hurst v. Florida, 136 S. Ct.
616; Ring, 536 U.S. 584.
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Because I would apply Hurst to Gaskin’s case, I must now determine
whether the Hurst error in Gaskin’s penalty phase was harmless beyond a
reasonable doubt. On remand from the United States Supreme Court, this Court
determined that Hurst error is capable of harmless error review. Hurst, 202 So. 3d
at 67. In Hurst, we established the test for reviewing these errors for harmlessness:
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
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.
202 So. 3d at 68 (last 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 that
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there were sufficient aggravating factors that outweighed the mitigating
circumstances.
Gaskin’s sentences became final in 1993. Majority op. at 2. The penalty
phase jury voted eight to four to recommend a sentence of death for both murders.
Majority op. at 2. So not only are we unable to determine beyond a reasonable
doubt that the jury unanimously made the requisite findings to impose death as
required by Hurst, but most significantly in Gaskin’s case, the jury may have relied
on invalid aggravating factors to reach its mere eight to four recommendation for
death. See majority op. at 2-3. As the majority explained, this Court reversed and
vacated Gaskin’s sentences of felony murder, which the sentencing jury likely
considered in its weighing process. Majority op. at 2-3. Thus, for the reasons
stated above and under the test set forth by this Court in Hurst for determining
whether Hurst errors are harmless beyond a reasonable doubt, I would conclude
that any error in Gaskin’s nonunanimous sentencing recommendation was not
harmless beyond a reasonable doubt and Gaskin should, therefore, receive a new
penalty phase under Hurst.
PERRY, Senior Justice, concurring in part and dissenting in part.
I concur in the majority’s conclusion that Gaskin’s claim of improper
doubling is untimely and procedurally barred. See majority op. at 4. However, I
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respectfully dissent from the majority’s decision not to apply Hurst v. Florida, 136
S. Ct. 616 (2016), retroactively.
I dissent because Hurst v. Florida does apply retroactively to Gaskin’s case.
In his present appeal, Gaskin once again challenges the constitutionality of
Florida’s death penalty statute. The majority concluded that Gaskin was not
eligible for Hurst v. Florida relief because Gaskin’s sentences became final in
1993, before the United States Supreme Court decided Ring v. Arizona, 536 U.S.
584 (2002). See majority op. at 5.
For the reasons I dissented in part in Asay, I cannot agree with the majority’s
decision to limit the retroactive effect of Hurst v. Florida to those cases that were
not final before Ring. See Asay v. State, No. SC16-223, 2016 WL 7406538 at *13
(Fla. Dec. 22, 2016) (Perry, J., dissenting). I would find that Hurst v. Florida
applies retroactively regardless of whether a sentence became final before or after
the Ring decision.
An Appeal from the Circuit Court in and for Volusia County,
Joseph David Walsh, Judge - Case No. 641995CF034327XXXAES
James Vincent Viggiano, Jr., Capital Collateral Regional Counsel – Middle
Region, James Lawrence Driscoll, Jr., David Dixon Hendry, and Gregory W.
Brown, Assistant Capital Collateral Regional Counsel – Middle Region, Tampa,
Florida,
for Appellant
Pamela Jo Bondi, Attorney General, Tallahassee, Florida; and Scott Andrew
Browne, Senior Assistant Attorney General, Tampa, Florida,
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for Appellee
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Louis B. Gaskin v. State of Florida
Combined Opinion