Supreme Court of Florida
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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.
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 Hitchcock2 and 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
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