final until disposition of timely filed motion for rehearing.
for writ of prohibition to the Circuit Court for the
Seventeenth Judicial Circuit, Broward County; Ilona M.
Holmes, Judge; L.T. Case No. 15-012208 CF10A.
Jo Bondi, Attorney General, Tallahassee, and Leslie T.
Campbell, Assistant Attorney General, West Palm Beach, for
Finkelstein, Public Defender, and Diane M. Cuddihy, Chief
Assistant Public Defender, Fort Lauderdale; and Carey
Haughwout, Public Defender, and Gary Lee Caldwell, Assistant
Public Defender, West Palm Beach, for respondent.
State petitions for a writ of prohibition from the trial
court's order granting the defendant's Motion to
Prohibit Death as a Penalty in a pending first-degree murder
prosecution. We have jurisdiction. State v. Jones,
209 So.3d 6, 9 (Fla. 2d DCA 2016). We grant the petition and
quash the trial court's order.
trial court precluded the State from death-qualifying a jury
and from seeking the death penalty for two reasons: (1) the
death penalty statute then in effect was found partially
unconstitutional in Perry v. State, 210 So.3d 630
(Fla. 2016), so there was no constitutional procedure in
place for imposing the death penalty; and (2) the grand
jury's indictment did not allege the "aggravating
factors" that the State intended to prove at sentencing.
the trial court's first reason, the Florida Supreme Court
has since held that the death penalty statute could be
constitutionally applied in pending prosecutions if the jury
is unanimous in recommending death. Evans v. State,
42 Fla.L.Weekly S200 (Fla. Feb. 20, 2017). The Florida
Legislature enacted Chapter 2017-1, Laws of Florida
(effective March 13, 2017), which amends the portion of the
statute found problematic in Perry to require a
unanimous jury recommendation to impose a death sentence.
Thus, on this point, the State has established a basis for
the second reason, a long line of precedent from the Florida
Supreme Court holds that aggravating factors need not be
charged in an indictment. See, e.g., Miller v.
State, 42 So.3d 204, 215 (Fla. 2010); Smith v.
State, 151 So.3d 1177, 1182-83 (Fla. 2014); Tai A.
Pham v. State, 70 So.3d 485, 496 (Fla. 2011); Rogers
v. State, 957 So.2d 538, 554 (Fla. 2007); Coday v.
State, 946 So.2d 988, 1006 (Fla. 2006); Porter v.
Crosby, 840 So.2d 981, 986 (Fla. 2003); Kormondy v.
State, 845 So.2d 41, 54 (Fla. 2003); Sireci v.
State, 399 So.2d 964, 970 (Fla. 1981). Regardless, our
review of the indictment in this case finds that it
adequately alleged the aggravating factors necessary to
support the death penalty. Accordingly, the State has
established a basis for relief on this point as well.
grant the petition and quash the trial court's order.
This decision does not preclude defendant from raising claims
relating to these issues on appeal if necessary.
granted. Order quashed.
Ciklin, CJ, and Klingensmith, J, concur.
Warner, J, concurring specially.
concur in the majority opinion, because the Florida Supreme
Court has not overruled its prior precedent that aggravating