FIFTH DISTRICT COURT OF APPEAL
STATE OF FLORIDA
_____________________________
Case No. 5D23-1569
LT Case Nos. 2004-CF-001378
2004-CF-001380
_____________________________
STATE OF FLORIDA,
Petitioner,
v.
TROY VICTORINO and JERONE
HUNTER,
Respondents.
_____________________________
Petition for Certiorari Review of Order from the Circuit Court
for Volusia County.
Randell H. Rowe, III, Judge.
Ashley Moody, Attorney General, Tallahassee, Christina Z.
Pacheco, Senior Assistant Attorney General, Tampa, and Doris
Meacham, Senior Assistant Attorney General, Daytona Beach, for
Petitioner.
Ann E. Finnell and Gonzalo Andux, of Finnell, McGuinness,
Nezami & Andux, P.A., Jacksonville, for Respondent Troy
Victorino.
Garry Wood, Palatka, and Allison Ferber Miller, of Ripley
Whisenhunt, PLLC, Pinellas Park, for Respondent Jerone Hunter.
September 22, 2023
JAY, J.
We previously granted the State’s emergency petition for
writ of certiorari. This opinion explains that decision.
I.
In August 2004, Respondents bludgeoned six people to death
in Deltona. The Supreme Court of Florida summarized the scene
of the murders as follows:
On the morning of August 6, 2004, a
coworker of two of the occupants of a
residence on Telford Lane in Deltona,
Florida, discovered the victims’ bodies.
Belanger lived at the Telford residence
with Ayo–Roman, Nathan, and Vega.
Gonzalez and Gleason happened to be at
the house the night of the murders. The
six victims had been beaten to death with
baseball bats and had sustained cuts to
their throats, most of which were
determined to have been inflicted
postmortem. Belanger also sustained
lacerations through her vagina up to the
abdominal cavity of her body; the injuries
were consistent with having been inflicted
by a baseball bat. The medical examiner
determined that some of the victims had
defensive wounds. A dead Dachshund was
also found in the house.
Following a call to 911, law enforcement
officers responded to the scene. The front
door had been kicked in, breaking a
deadbolt lock and leaving a thirteen-inch
shoe-print impression on the door. The
victims were found throughout the house
and blood was everywhere.
Hunter v. State, 8 So. 3d 1052, 1057 (Fla. 2008); see also Victorino
2
v. State, 23 So. 3d 87, 92–93 (Fla. 2009) (summarizing the same
facts).
The jury found Respondents guilty in all six murder counts,
and by non-unanimous margins, recommended death sentences in
four of the counts. The trial court followed those recommendations,
and the Supreme Court of Florida affirmed. Victorino, 23 So. 3d at
91; Hunter, 8 So. 3d at 1057. However, Respondents later received
new penalty phases pursuant to Hurst v. State, 202 So. 3d 40 (Fla.
2016) (holding that a court may not constitutionally impose a
death sentence unless the jury unanimously recommends it).1
On April 10, 2023, jury selection began in Respondents’
resentencing proceeding. On April 20, while jury selection
continued, the Governor signed into law an amended version of
section 921.141, Florida Statutes. The amended statute went into
effect immediately and provides that “[i]f at least eight jurors
determine that the defendant should be sentenced to death, the
jury’s recommendation to the court must be a sentence of death.” §
921.141(2)(c), Fla. Stat. (2023). Reflecting the state of the law
under Hurst, the statute previously provided that only a
unanimous jury could make such a recommendation. See §
921.141(2)(c), Fla. Stat. (2022).
The State moved to apply the amended statute to this case.
The trial court ultimately denied the State’s motion, concluding
that because jury selection had already commenced, using the
amended statute would violate Respondents’ due process rights.
The State sought certiorari relief in this court. For the reasons
explained below, we granted the State’s petition and directed the
trial court to apply the current version of section 921.141.2
1 The court later receded from that holding. State v. Poole, 297
So. 3d 487 (Fla. 2020) (holding that even if a jury does not
unanimously recommend it, a court may constitutionally impose a
death sentence if the jury unanimously finds the existence of a
statutory aggravating circumstance beyond a reasonable doubt).
2 After our order granting the State’s petition, the trial court
granted a mistrial. In a show cause order, we asked the parties if
the mistrial mooted any further proceedings in this court. Neither
3
II.
At the outset, we address Respondents’ belief that because
this is a death penalty case, the State should have filed its petition
in the Supreme Court. Florida law says otherwise. Our
constitution provides that the Supreme Court “[s]hall hear appeals
from final judgments of trial courts imposing the death penalty.”
Art. V, § 3(b)(1), Fla. Const. (emphasis added); see also Fla. R. App.
P. 9.030(a)(1)(A)(i) (reflecting the constitutional mandate). Here,
the trial court had not entered a final judgment imposing the death
penalty, so the Supreme Court’s mandatory, exclusive jurisdiction
did not attach. See State v. Matute-Chirinos, 713 So. 2d 1006, 1008
(Fla. 1998) (“However, our jurisdiction does not include cases in
which the death penalty is sought but not yet imposed . . . .”
(quoting State v. Fourth Dist. Ct. of Appeal, 697 So. 2d 70, 71 (Fla.
1997))); see also State v. Jackson, 306 So. 3d 936, 943 (Fla. 2020)
(finding that as a result of the vacation of defendant’s death
sentence, “Jackson analogously stands in the same position as any
other defendant who has been convicted of first-degree murder but
who has not yet been sentenced”).
Moreover, it has long been settled that district courts may
lawfully consider challenges to interlocutory orders in death
party thought that dismissal on mootness grounds was
appropriate. We agree that because we already ruled on the State’s
petition, the mistrial does not moot the issuance of this opinion.
See State Farm Fla. Ins. Co. v. Bellamy, 302 So. 3d 1081, 1082 (Fla.
1st DCA 2020) (“On appeal, a case is moot where, by a change of
circumstances prior to the appellate court’s decision, the judiciary
is unable to grant any effectual relief.” (emphasis added)); In re
Guardianship of Schiavo, 932 So. 2d 264, 264 n.1 (Fla. 2d DCA
2005) (“[W]e issued our per curiam decision at a time when this
case was not moot and was of great public importance, stating,
‘Affirmed; an opinion will follow.’ We do not believe that the
doctrine of mootness allows us to avoid explaining a decision when
it is issued in such an expedited fashion.”); see also Hassoun v.
Searls, 976 F.3d 121, 130 (2d Cir. 2020) (“Because the court’s
opinion explained its previous order—which addressed a live case
or controversy—the opinion was not advisory.”).
4
penalty cases. See State v. Preston, 376 So. 2d 3, 4–5 (Fla. 1979)
(“But the issues in these types of [pre-trial] motions are not unique
to capital cases or to the death sentence itself. There is no
compelling reason that they cannot be reviewed in the district
courts like all other interlocutory matters in the course of a
criminal proceeding.”); Gore v. State, 614 So. 2d 1111, 1113 (Fla.
4th DCA 1992) (“Yet, a decision in this circumstance holding that
only the supreme court is competent to pass on this discovery
question would undoubtedly, and quite understandably, suggest
that our supreme court should be the court of initial review on any
number of interlocutory rulings of the trial court in a capital case.
That result would embroil the supreme court in every potential
death penalty case, before any death penalty has been
imposed . . . . There is not a word in either the constitutional
provision or the rule on death penalty jurisdiction that suggests
that the drafters intended such a result.”). Indeed, district courts
often do so. See, e.g., Barahona v. State, 172 So. 3d 470 (Fla. 3d
DCA 2015); Tyson v. State, 114 So. 3d 443 (Fla. 5th DCA 2013).
Thus, we reject Respondents’ threshold argument that the
State filed its petition in the wrong court, and now turn to the
merits of the State’s petition.
A.
Certiorari relief requires three elements: “(1) a departure
from the essential requirements of the law, (2) resulting in
material injury for the remainder of the case (3) that cannot be
corrected on postjudgment appeal.” Reeves v. Fleetwood Homes of
Fla., Inc., 889 So. 2d 812, 822 (Fla. 2004) (quoting Bd. of Regents
v. Snyder, 826 So. 2d 382, 387 (Fla. 2d DCA 2002)). The last two
elements—collectively referred to as “irreparable harm”—are
jurisdictional in nature. Citizens Prop. Ins. Corp. v. San Perdido
Ass’n, 104 So. 3d 344, 351 (Fla. 2012). As such, a court considers
them before deciding whether the trial court departed from the
essential requirements of the law. Id. (quoting Williams v. Oken,
62 So. 3d 1129, 1132 (Fla. 2011)).
Here, the old statute required the State to convince all
twelve jurors that death is the appropriate sentence, whereas the
current statute mandates only eight. If applying the old statute
5
was indeed error, the irreparable harm to the State was obvious
because apart from certiorari relief, the State would have no way
to recover from the error. See Wright v. State, 586 So. 2d 1024, 1032
(Fla. 1991) (“In the context of capital proceedings, the
constitutional protection against double jeopardy provides that if
a defendant has been in effect ‘acquitted’ of the death sentence, the
defendant may not again be subjected to the death penalty for that
offense if retried or resentenced for any reason.”); see also State v.
Pettis, 520 So. 2d 250, 253 n.2 (Fla. 1988) (“The defendant does not
suffer the same prejudice [as the State does from erroneous pre-
trial rulings] because he always has the right of appeal from a
conviction in which he can attack any erroneous interlocutory
orders.”).
Given the clear nature of the irreparable harm, we now
explain why the trial court’s refusal to apply the current version of
section 921.141 was a departure from the essential requirements
of the law.
B.
We first address how an April 2023 statutory amendment
can lawfully apply to a proceeding about events from August 2004.
The U.S. and Florida Constitutions forbid the use of ex post
facto laws. See Art. I, § 9, cl. 3, U.S. Const.; Art. I, § 10, Fla. Const.
In short, ex post facto laws criminalize or enhance the criminal
penalty for conduct that has already occurred. Weaver v. Graham,
450 U.S. 24, 28 (1981) (quoting Cummings v. Missouri, 71 U.S. 277,
325–26 (1866)). Thus, a law does not violate the ex post facto clause
unless it is retrospective in its effect and alters the definition of a
crime or increases the sentence by which the crime is punishable.
Griffin v. State, 980 So. 2d 1035, 1036 (Fla. 2008) (quoting Gwong
v. Singletary, 683 So. 2d 109, 112 (Fla. 1996)).
A procedural change—even one that works to a defendant’s
disadvantage—is generally not an ex post facto law since it does
not alter substantive personal rights. See Dobbert v. Florida, 432
U.S. 282, 293 (1977); Shenfeld v. State, 44 So. 3d 96, 100 (Fla.
2010); McLean v. State, 854 So. 2d 796, 803 (Fla. 2d DCA 2003);
see also Harris v. State, 400 So. 2d 819, 820 (Fla. 5th DCA 1981)
6
(observing that “procedural changes are to be applied to pending
cases”). A law is procedural when it alters how a criminal case is
adjudicated instead of addressing the substantive criminal law.
Collins v. Youngblood, 497 U.S. 37, 45 (1990); see also Procedural
Law, Black’s Law Dictionary (11th ed. 2019) (“The rules that
prescribe the steps for having a right or duty judicially enforced,
as opposed to the law that defines the specific rights or duties
themselves.”). Litigants generally have no vested rights in
procedural regulations. Carmell v. Texas, 529 U.S. 513, 544 (2000)
(quoting Thompson v. Missouri, 171 U.S. 380, 385 (1898)).
Here, the amendment to section 921.141 is a
quintessentially procedural change that has no substantive effect.
“The new statute simply alter[s] the methods employed in
determining whether the death penalty [is] to be imposed; there
[is] no change in the quantum of punishment attached to the
crime.” See Dobbert, 432 U.S. at 293–94. Because the change to
section 921.141 “neither alters the definition of criminal conduct
nor increases the penalty by which the crime of first-degree
murder is punishable[,] . . . it does not constitute an ex post facto
law.” See Victorino v. State, 241 So. 3d 48, 50 (Fla. 2018).
Furthermore, it is irrelevant that the current version of
section 921.141 became law after jury selection started. Criminal
jeopardy attaches when a jury—not a group of prospective jurors—
is sworn. Knight v. State, 211 So. 3d 1, 11 (Fla. 2016) (“This
[jeopardy] principle does not refer to a venire panel being sworn in
to prepare for voir dire, but to the jury of record, which has been
selected to hear the case, being sworn in to prepare to hear
testimony.”). Here, the court did not swear the selected jury until
after the current version of section 921.141 became law. The fact
that jury selection began on April 10 did not insulate these
proceedings from an amendment to a procedural law that took
effect before the jury was sworn and heard any evidence.
C.
We now turn to the unusual facts of this case, which put to
rest any lingering doubt about whether the application of the
current version of the statute would have violated Respondents’
due process rights.
7
Respondents’ argument is essentially one of detrimental
reliance. They maintain that they justifiably conducted jury
selection under the assumption that the old version of the statute
would apply. However, the record shows that the statutory
amendment took no one by surprise.
In their response to the State’s motion to use the current
version of section 921.141, Victorino’s lawyers acknowledged that
by March 2023, “all parties were aware that a bill was pending in
the Florida legislature seeking to change the death penalty
sentencing procedures.” Jury selection began on April 10.
Victorino’s lawyers further acknowledged that “[d]uring this entire
process, the Court, State, and the attorneys for Mr. Victorino and
Mr. Hunter were generally aware of the progress of the new bill
through the Florida legislature.”
On April 17, a prospective juror asked about the looming
change to section 921.141. The trial judge told the prospective
jurors that “I’ll be instructing you on what the law is, and so
whoever ends up on the jury, before you go deliberate I’ll be giving
you a whole lot of instructions on the law, and certainly I’ll tell you
what law applies as far as sentencing.” After two jurors indicated
they heard about the possible change in the law through national
news outlets, the trial judge reiterated that he would instruct the
jury on the applicable law:
So, yeah, there is a debate in the
legislature about a lot of laws changing
things, but you really shouldn’t concern
yourself with what they’re doing right
now.
As far as this case and what applies now,
I promise, you know, when this goes to the
jury, I’ll give you the law on what applies,
and you really shouldn’t concern yourself
about what’s being debated right now in
Tallahassee.
Jury selection continued. Victorino’s lawyers did not conduct
8
any voir dire of the prospective jurors. In their response to the
State’s motion, the lawyers reported they took this approach
because they wanted to select a jury to try the case as soon as
possible—before the new law took effect.
The Governor then signed the amended statute into law on
the morning of April 20. When jury selection resumed that day, the
State requested a ruling on its motion to apply the new law. The
court noted that “we all knew this was going to happen today.” The
court indicated that jury selection would continue and that it
would later decide which version of section 921.141 applied.
Hunter’s counsel agreed that the case should move forward.
After additional discussion, the State suggested conducting
voir dire about the change in the law to ensure the prospective
jurors could “still fairly impose life or death.” Counsel for Hunter
dismissed this suggestion, contending that the current version of
section 921.141 could not possibly apply to this case. The court
indicated that additional voir dire would take too much time and
that jury selection would move on to peremptory challenges.
Discussion ensued about when to swear the selected jury,
with the State requesting a delay so that it could pursue appellate
remedies related to its motion, and Respondents asking the court
to swear the jury immediately. Respondents expressed concern
that a delay would allow the State to back strike up to five selected
jurors. To alleviate this worry, the State offered to waive all its
remaining strikes. However, the court ultimately decided to
commence with swearing the jury.
In sum, this record shows that the change to section 921.141
was entirely foreseeable to all parties. The record suggests that
both sides were cognizant of the impact the new law would have
on this proceeding and tailored their litigation strategies—
including the scope and even the existence of voir dire—to
maximize the chance that their preferred version of the statute
would apply. It is not for us to comment on the reasonableness of
those strategic choices made by experienced attorneys, especially
given the inevitably distorting effect of hindsight. See Covington v.
State, 348 So. 3d 456, 466 (Fla. 2022) (noting that when a court is
called upon to evaluate a lawyer’s performance, the court must
9
make “every effort” to “eliminate the distorting effects of hindsight,
to reconstruct the circumstances of counsel’s challenged conduct,
and to evaluate the conduct from counsel’s perspective at the
time.” (quoting Hayward v. State, 183 So. 3d 286, 297 (Fla. 2015))).
Instead, we only had to decide whether, under the circumstances
presented here, there was any due process impediment to applying
the current version of a procedural statute to that proceeding. We
held there was not.
“The essence of due process is ‘reasonable notice and a
reasonable opportunity to be heard.’” A.W. v. Humana Med. Plan,
Inc., 270 So. 3d 400, 402 (Fla. 4th DCA 2019) (quoting Citizens of
State v. Fla. Pub. Serv. Comm’n, 146 So. 3d 1143, 1154 (Fla. 2014)).
The record before us shows that Respondents received both. They
were neither blindsided by the change in the law nor were they
denied opportunities to argue why it should not apply to that
proceeding or to question prospective jurors about their views on
the new law. Due process guaranteed them these rights, but it does
not guarantee them success on the merits.
III.
“Trial courts have the ‘responsibility to determine and
properly instruct the jury on the prevailing law.’” Allen v. State,
324 So. 3d 920, 928 (Fla. 2021) (quoting Standard Jury
Instructions in Crim. Cases (95-1), 657 So. 2d 1152, 1153 (Fla.
1995)). To fulfill that role in this case, the trial court should have
granted the State’s motion to apply the current version of section
921.141.
Because the State showed a departure from the law’s
essential requirements resulting in irreparable harm, it was
entitled to certiorari relief.
LAMBERT, J., concurs and concurs specially, with opinion.
HARRIS, J., concurs in part and dissents in part, with opinion.
10
_____________________________
Not final until disposition of any timely and
authorized motion under Fla. R. App. P. 9.330 or
9.331.
_____________________________
11
Case No. 5D23-1569
LT Case Nos. 2004-CF-001378
2004-CF-001380
LAMBERT, J., concurring specially, with opinion.
I fully concur with the majority opinion. In my view, the
situation here could have been avoided by the asking of additional
questions of the prospective jurors regarding this new statute and
how, if at all, it would affect their ability to be fair and impartial. 1
I write separately to address what I view to be a somewhat
inconsistent position being taken by one of the respondents.
In 2006, when Victorino and Hunter were tried and convicted
in this case of the six first-degree murders that they committed in
2004, the law at the time permitted a jury to recommend the death
penalty by a simple majority (7-5) vote. The jury recommended the
death penalty for four of these murders, which the trial court
imposed. In fact, one of Victorino’s death penalty sentences
followed a 7-5 recommendation by the jury.
After the Florida Supreme Court’s decision in Hurst,
discussed in the majority opinion, and the statute subsequently
enacted by the Legislature in response to require unanimity from
the jury before a death sentence could be imposed, Victorino filed
a successive Florida Rule of Criminal Procedure 3.851 motion for
postconviction relief to vacate his death sentences. The lower court
vacated Victorino’s death sentences; and it ordered a new penalty
phase trial, which awaits below. 2
1 I am not unsympathetic to the trial judge and the unusual
predicament that he faced. Having presided over several death
penalty trials when I was a circuit judge, I know that they can be
difficult, stressful, and time-consuming, especially where, as here,
a mistrial is subsequently declared by the judge and the entire trial
process necessarily starts over.
2 Hunter also sought postconviction relief under Hurst and the
lower court vacated his death sentences as well.
12
Victorino was not, however, entirely successful in his
postconviction motion. He had also argued that because his first
jury did not unanimously recommend the death penalty on any of
the counts for which the death sentence was imposed, he was
entitled to be resentenced to serve life in prison under section
775.082(2), Florida Statutes, and the trial court erred by instead
ordering the new sentencing phase trial. On appeal, Victorino
pointedly asserted that to “apply the recent, post-Hurst case law
retroactively to make [him] death-eligible would violate the
constitutional prohibitions against ex post facto laws.” Victorino
v. State, 241 So. 3d 48, 50 (Fla. 2018).
The Florida Supreme Court flatly, and unanimously,
rejected this argument, explaining:
For a criminal law to be ex post facto it
must be retrospective, that is, it must
apply to events that occurred before its
enactment; and it must alter the definition
of criminal conduct or increase the penalty
by which a crime is punishable. Lynce v.
Mathis, 519 U.S. 433, 441, 117 S. Ct. 891,
137 L. Ed. 2d 63 (1997). Florida’s new
capital sentencing scheme, which requires
the jury to unanimously and expressly
find all the aggravating factors that were
proven beyond a reasonable doubt,
unanimously find that sufficient
aggravating factors exist to impose death,
unanimously find that the aggravating
factors outweigh the mitigating
circumstances, and unanimously
recommend a sentence of death before the
trial judge may consider imposing a
sentence of death, see § 921.141(2), Fla.
Stat. (2017), neither alters the definition
of criminal conduct nor increases the
penalty by which the crime of first-degree
murder is punishable. Thus, it does not
constitute an ex post facto law, and
Victorino is therefore not entitled to relief.
13
Id.
Now, five years after the supreme court’s opinion in his own
case, Victorino has an entirely different view of the former statute
that required the unanimous verdict for the death penalty. He no
longer contends, as he did then, that it would be a violation of the
constitutional prohibitions against ex post facto laws to apply this
since-repealed statute in his upcoming sentencing phase retrial.
Quite the contrary. Victorino instead argues that it would be an
ex post facto violation if this former statute is not used.
To provide further context pertinent to the issue here, the
Florida Supreme Court’s opinion in Hurst, which, as previously
stated, directly led to the Florida Legislature’s enactment of the
aforementioned unanimous verdict statute, was receded from by
the court in Poole in 2020. 297 So. 3d at 491. The repealed
“unanimous verdict” statute, which the respondents argue should
apply in their sentencing phase retrial, was enacted thirteen years
after they committed their first-degree murders and eleven years
after they were convicted. But for Hurst, which the Florida
Supreme Court specifically determined in Poole was wrongly
decided, 297 So. 3d at 506, the respondents would not be having
the instant sentencing phase retrial.
Moreover, the current statute requiring a jury vote of 8-4
prior to the imposition of the death penalty, the use of which the
respondents complain violates the constitutional prohibition
against ex post facto laws, arguably makes it more difficult for the
State to obtain a jury verdict recommending the death penalty
than when the respondents were first convicted and sentenced in
2006 when the “7-5” statute was in effect. Under these
circumstances, and in light of the Florida Supreme Court’s opinion
in Victorino cited above, the respondents’ position that they are
constitutionally entitled to have their sentencing phase retrial
under the former statute lacks merit.
14
Case No. 5D23-1569
LT Case Nos. 2004-CF-001378
2004-CF-001380
HARRIS, J., concurring in part, dissenting in part.
I remain in full agreement with the majority’s legal analysis
and conclusion that the trial court erred in refusing to apply the
new version of section 921.141, Florida Statutes. However,
erroneous rulings below combined with the questionable legal
tactics of trial counsel created a legal quagmire for which I would
find the remedy afforded by granting certiorari wholly
inappropriate.
As the majority correctly points out, jury selection in this
resentencing trial began two weeks before the new statute went
into effect. During that time, approximately 200 potential jurors
were questioned regarding, among other things, their feelings
about the death penalty and whether they would be able to
recommend a sentence of death under the appropriate
circumstances. During this process, the prospective jurors were
repeatedly advised by the trial judge that it would take the vote of
all twelve jurors in order for the court to impose a death sentence.
A panel of jurors was ultimately “death qualified,” selected, and
sworn. However, when they expressed their ability and willingness
to follow the law, they did so with the clear understanding that
unanimity would be required before the Respondent could receive
a death sentence. We do not know, partly because the trial court
refused to allow additional questioning of the jurors, if their
answers during voir dire would have been different had they
known that only two-thirds of them would need to recommend a
death sentence as opposed to all twelve. We do not know, for the
same reason, whether any reservations, issues, or concerns they
may have with the death penalty would have been affected if they
were advised that only eight of them would be needed to make that
recommendation. The problems created by application of the
current law could have been remedied by simply allowing limited
additional questioning of the jurors or by starting the selection
process over.
15
Because “death is different,” I cannot join that portion of the
majority opinion that would have directed the trial court to proceed
with this trial and this particular jury under materially different
ground rules on such a critical issue.
16