MOTION FOR REHEARING WILL BE ALLOWED.
Appeal from the Circuit Court in and for Bay County, Brantley
Scott Clark, Jr., Judge - Case No. 031992CF000442XXAXMX And
an Original Proceeding - Habeas Corpus
McDermott of McClain & McDermott, P.A., Estero, Florida,
Jo Bondi, Attorney General, and Jennifer L. Keegan, Assistant
Attorney General, Tallahassee, Florida, for
Michael Orme appeals an order of the circuit court denying
his motion to vacate his sentence of death, filed under
Florida Rule of Criminal Procedure 3.851, and he petitions
this Court for a writ of habeas corpus. We have jurisdiction.
See art. V, § 3(b)(1), (9), Fla. Const. For the
reasons that follow, we grant Orme a new penalty phase based
on the United States Supreme Court's decision in
Hurst v. Florida, 136 S.Ct. 616 (2016), as
interpreted by our decision in Hurst v. State, 202
So.3d 40 (Fla. 2016), petition for cert. filed, No.
16-998 (U.S. Feb. 13, 2017).
AND PROCEDURAL HISTORY
description of the facts of the instant case can be found in
our opinion from Orme's direct appeal. Orme v.
State (Orme I), 677 So.2d 258, 260-61 (Fla.
1996). The facts relevant here are as follows. In March 1992,
Orme was charged with premeditated or felony murder, robbery,
and sexual battery in connection with the death of Lisa Redd,
whose body was found in Orme's motel room. Id.
at 260. A jury convicted Orme on all three counts and
recommended the death penalty by a vote of seven to five.
Id. at 261. The trial judge followed the
recommendation and sentenced Orme to death, finding three
aggravating factors-committed during the course of a sexual
battery; heinous, atrocious, or cruel (HAC); and committed
for pecuniary gain. Id. In mitigation, the judge
found both statutory mental health mitigators (substantial
impairment and extreme emotional disturbance), giving them
"some weight." Id. We have previously
described the procedural history of this case as follows:
On direct appeal, Orme raised eight issues. [n.1] This Court
affirmed Orme's conviction of first-degree murder and the
sentence of death. [Orme I, 677 So.2d at 261-64.]
Orme filed a petition for writ of certiorari with the United
States Supreme Court. That Court denied review on January 13,
1997. Orme v. Florida, 519 U.S. 1079 (1997).
[N.1] The following issues were raised: (1) the trial court
should have directed a judgment of acquittal on grounds the
case against him was circumstantial and the State had failed
to disprove all reasonable hypotheses of innocence; (2)
Orme's statements to officers should have been suppressed
on grounds he was too intoxicated with drugs to knowingly and
voluntarily waive his right to silence; (3) death is not a
proportionate penalty because Orme's will was overborne
by drug abuse, and because any fight between the victim and
him was a "lover's quarrel"; (4) Orme's
mental state at the time of the murder was such that he could
not form a "design" to inflict a high degree of
suffering on the victim; (5) the trial court erred by failing
to weigh in mitigation the fact that Orme had no significant
prior criminal history; (6) the trial court erred in
declining to give a special instruction that acts perpetrated
on the victim after her death are not relevant to [the HAC
aggravato]r; (7) the instruction on [HAC] violated the
dictates of Espinosa v. Florida, 505 U.S. 1079
(1992); and (8) Orme was incapable of forming the specific
intent necessary for first-degree murder and this fact bars
his death sentence under Enmund v. Florida, 458 U.S.
Subsequently, Orme filed an amended motion for postconviction
relief pursuant to Florida Rule of Criminal Procedure 3.851,
raising twenty-five claims. After an evidentiary hearing on
four claims of ineffective assistance of trial counsel, the
trial court denied relief. Orme appealed the denial of
postconviction relief to this Court, raising three claims.
[n.2] He also petitioned the Court for a writ of habeas
corpus, raising eight claims. [n.3] See [Orme v.
State (Orme II), 896 So.2d 725, 737 (Fla.
2005)]. This Court found defense counsel ineffective for
failing to further investigate Orme's diagnosis of
bipolar disorder with respect to the penalty phase. As a
result, a new penalty phase was ordered. Id. [at
[N.2] Orme argued that (1) the trial court erred in denying
his ineffective assistance of counsel claim for trial
counsel's failure to present evidence of Orme's
diagnosis of bipolar disorder; (2) his death sentence is
unconstitutional pursuant to Ring v. Arizona, 536
U.S. 584 (2002), and its progeny; and (3) the general jury
qualifications procedure in Bay County, where he was tried,
was unconstitutional. [Orme II], 896 So.2d 725 (Fla.
[N.3] Three of the claims Orme raised were: (1) appellate
counsel was ineffective for failing to raise on appeal the
fact that Orme was involuntarily absent from two bench
conferences, which he claims were critical stages of his
trial; (2) appellate counsel was ineffective for failing to
raise on appeal the claim that the prosecutor engaged in
misconduct rendering the conviction and sentence
fundamentally unfair; and (3) appellate counsel was
ineffective for failing to raise on appeal the claim that the
trial court erroneously allowed forty-three gruesome
photographs to be shown to the jury. Orme raised five
additional claims, all of which were found not to be properly
raised in a habeas proceeding because they were either raised
on direct appeal or in postconviction or should have been
raised and were therefore procedurally barred. [Orme
II, 896 So.2d at 740].
In May 2007, a new penalty phase was conducted before a new
jury, but before the original trial judge. By a vote of
eleven to one, the new jury recommended a death sentence. The
trial court followed the jury's recommendation and
sentenced Orme to death. The trial court found the following
three statutory aggravating factors: (1) the capital felony
was committed for pecuniary gain; (2) the capital felony was
committed while the defendant was engaged in the commission
of, or an attempt to commit, or flight after committing or
attempting to commit a sexual battery; and (3) the capital
felony was especially heinous, atrocious, or cruel. The trial
court also found three statutory mitigators: (1) the
defendant had no significant criminal history (little
weight); (2) the capital felony was committed while the
defendant was under the influence of extreme mental or
emotional disturbance (little weight); and (3) the capacity
of the defendant to appreciate the criminality of his conduct
or to conform his conduct to the requirements of the law was
substantially impaired (little weight). The trial court also
found that the following mitigation was either irrelevant to
the murder or did not exist and, as a result, gave them no