FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF
Appeal from the Circuit Court in and for Sarasota County,
Charles E. Roberts, Judge - Case No. 582004CF002129XXXANC
Jo Bondi, Attorney General, Tallahassee, Florida, and
Christina Z. Pacheco, Assistant Attorney General, Tampa,
Florida, for Appellant
Vincent Viggiano, Jr., Capital Collateral Regional Counsel,
Ann Marie Mirialakis and Ali A. Shakoor, Assistant Capital
Collateral Regional Counsel, Middle Region, Temple Terrace,
Florida, for Appellee
case is before the Court on appeal from an order granting a
successive motion to vacate a sentence of death under Florida
Rule of Criminal Procedure 3.851. Because the order concerns
postconviction relief from a sentence of death, we have
jurisdiction. Art. V, § 3(b)(1), Fla. Const.
Court has previously detailed the gruesome facts of this
case. Smith v. State (Smith I), 28 So.3d
838, 844-53 (Fla. 2009). Relevant to the instant proceeding,
Joseph Smith was convicted of first-degree murder,
kidnapping, and capital sexual battery of eleven-year-old
Carlie Jane Brucia and was sentenced to death. Id.
at 844. After a penalty phase, the jury recommended a death
sentence by a vote of ten to two. Id. at
On direct appeal, we held that the trial court's finding
of the CCP aggravator was not supported by competent,
substantial evidence and thus the CCP aggravator was
stricken. Id. at 868. Nevertheless, we ultimately
affirmed Smith's convictions and sentence. Id.
at 878. The United States Supreme Court denied certiorari
review on June 28, 2011. Smith v. Florida, 564 U.S.
subsequently filed a motion for postconviction relief raising
numerous challenges, including a Ring challenge, which
the postconviction court summarily denied. Smith v.
State (Smith II), 151 So.3d 1177, 1181 (Fla.
2014). Smith appealed to this Court, and we affirmed the
denial of postconviction relief. Id. at 1184. Next,
Smith filed a petition for writ of habeas corpus in the
United States District Court for the Middle District of
Florida, which was stayed as of July 15, 2016.
January 5, 2017, after the issuance of Hurst v.
Florida, 136 S.Ct. 616 (2016), Hurst v. State,
202 So.3d 40 (Fla. 2016), cert. denied, 137 S.Ct.
2161 (2017), and its progeny, Smith filed this Successive
Motion to Vacate Death Sentence, which the postconviction
court granted with regard to the claim that Smith is entitled
to a new penalty phase. The State's appeal followed. On
September 19, 2017, this Court issued an order to show cause
why the lower court's order should not be affirmed based
on this Court's precedent in Hurst, Davis v.
State, 207 So.3d 142 (Fla. 2016), and Mosley v.
State, 209 So.3d 1248 (Fla. 2016), to which the parties
contends that he is entitled to relief pursuant to the United
States Supreme Court's opinion in Hurst v.
Florida, which held that Florida's capital
sentencing scheme was unconstitutional because "[t]he
Sixth Amendment requires a jury, not a judge, to find each
fact necessary to impose a sentence of death. A jury's
mere recommendation is not enough." 136 S.Ct. at 619. On
remand, this Court held that a unanimous jury recommendation
for death is required before the trial court may impose a
sentence of death. Hurst, 202 So.3d at 54. Moreover,
this Court held 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." Id. We also
determined that Hurst error is capable of harmless
error review. Id. at 67.
applies retroactively to defendants whose sentences became
final after the United States Supreme Court issued its
decision in Ring. Mosley, 209 So.3d at
1283. Thus, Hurst applies retroactively to this
case, which became final in 2011.
we must determine whether the Hurst error during
Smith's penalty phase proceeding was harmless beyond a
reasonable doubt. "[I]n 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 [the] death sentence . . . ."
Hurst, 202 So.3d at 68. 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 each