          Supreme Court of Florida
                                  ____________

                                  No. SC16-729
                                  ____________

                        EDWARD J. ZAKRZEWSKI, II,
                                Petitioner,

                                        vs.

                             JULIE L. JONES, etc.,
                                 Respondent.

                                  [May 25, 2017]

PER CURIAM.

      This case is before the Court on Edward J. Zakrzewski, II’s petition for a

writ of habeas corpus claiming a right to relief under the United States Supreme

Court’s decision in Hurst v. Florida, 136 S. Ct. 616 (2016), and our decision on

remand in Hurst v. State (Hurst), 202 So. 3d 40 (Fla. 2016), cert. denied, No. 16-

998 (U.S. May 22, 2017). We have jurisdiction. See art. V, § 3(b)(9), Fla. Const.

For the following reasons, we affirm Zakrzewski’s three sentences of death.

      In 1994, Zakrzewski pled guilty to three charges of first-degree murder for

the deaths of his wife and two young children. Zakrzewski v. State, 717 So. 2d

488, 490 (Fla. 1998), cert. denied, 525 U.S. 1126 (1999). After the penalty phase,
the jury recommended sentences of death for the murders of Zakrzewski’s wife

and son, both by a vote of seven to five. Id. at 491. For the murder of

Zakrzewski’s daughter, the jury recommended a sentence of life imprisonment

without parole. Id. The trial court, concluding that the aggravating factors

outweighed the mitigating circumstances for all three murders, followed the jury’s

recommendation on the first two and overrode the jury’s recommendation on the

third and sentenced Zakrzewski to death for all three murders. Id. On direct

appeal, this Court “affirm[ed] the three death sentences.” Id. at 495.

      In 2003, Zakrzewski appealed the trial court’s denial of postconviction relief

on his claim that Florida’s death penalty is unconstitutional under the United States

Supreme Court’s decisions in Apprendi v. New Jersey, 530 U.S. 466 (2000), and

Ring v. Arizona, 536 U.S. 584 (2002). Zakrzewski v. State, 866 So. 2d 688, 692,

696 (Fla. 2003). This Court affirmed the trial court’s denial of postconviction

relief. Id. at 697. Zakrzewski now claims that his death sentences are

unconstitutional under Hurst v. Florida and Hurst and that he is entitled to relief

under chapter 2016-13, Laws of Florida.

      In Asay v. State, 210 So. 3d 1 (Fla. 2016), petition for cert. filed, No. 16-

9033 (U.S. Apr. 29, 2017), we held that Hurst does not apply retroactively to

sentences of death that were final before the United States Supreme Court decided

Ring. In Marshall v. State, 2017 WL 1739246 (Fla. May 4, 2017), we denied


                                         -2-
Marshall’s petition for a writ of habeas corpus based on Asay, concluding that the

judicial override in Marshall’s case did not warrant an exception to the

retroactivity analysis in Asay. Id. Zakrzewski’s sentences became final in 1999

when the United States Supreme Court denied his petition for certiorari review.

Thus, Zakrzewski is not entitled to Hurst relief, and we deny his petition for writ of

habeas corpus.

      It is so ordered.

LABARGA, C.J., and QUINCE, POLSTON, and LAWSON, JJ., concur.
PARIENTE, J., concurs in result with an opinion.
LEWIS and CANADY, JJ., concur in result.

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION, AND
IF FILED, DETERMINED.

PARIENTE, J., concurring in result.

      Despite the savage, horrific way in which Zakrzewski, a veteran of the

United States Air Force, murdered his wife and two children, the jury votes in this

case, where “the trial judge found two statutory mitigating [circumstances], as well

as a number of nonstatutory mitigating [circumstances],” were 7-5, 7-5, and 6-6.

Zakrzewski v. State, 717 So. 2d 488, 494 (Fla. 1988). Following the jury’s two

recommendations for death and overriding the jury’s third recommendation for

life, the trial court sentenced Zakrzewski to death for all three murders. The

sentences of death became final in 1999. Majority op. at 3.




                                        -3-
      I concur in the majority’s result because I am bound by this Court’s

precedent in Asay v. State, 210 So. 3d 1 (Fla. 2016), petition for cert. filed, No. 16-

9033 (U.S. Apr. 29, 2017), and Marshall v. State, 2017 WL 1739246 (Fla. May 4,

2017), which held that Hurst v. State (Hurst), 202 So. 3d 40 (Fla. 2016), cert.

denied, No. 16-998 (U.S. May 22, 2017), does not apply retroactively to sentences

of death that became final before the United States Supreme Court decided Ring v.

Arizona, 536 U.S. 584 (2002), and there is no exception to this rule for sentences

that resulted from judicial overrides.

      However, as I expressed in Asay and Chief Justice Labarga expressed in

Marshall, the judicial override for the death sentence where the jury voted for life

“constitutes an injustice that should be remedied.” Marshall, 2017 WL 1739246, at

*1 (Labarga, C.J., dissenting); accord Asay, 210 So. 3d at 35 n.32 (Pariente, J.,

concurring in part and dissenting in part). Of course, in this case, as Petitioner

points out, Zakrzewski’s counsel raised arguments substantially similar to those

that were eventually recognized in both Ring and Hurst, including that Florida’s

capital sentencing scheme was unconstitutional under the Sixth Amendment and

article I, section 16, of the Florida Constitution for requiring only a bare majority

of the jury’s vote to impose death.

      As Justice Anstead stated, dissenting to this Court’s 1998 opinion affirming

the judicial override in this case, joined by Chief Justice Kogan and Justice Shaw:


                                         -4-
The majority has not honored Tedder and our consistent case law in
holding that, despite the unusual and unique circumstances involved
herein, and the extensive amount of statutory and non-statutory
mitigation established, no reasonable juror could vote for mercy, as
the jury did here, and spare appellant’s life for the killing of the child
Anna, while voting for death in the killing of Edward.
       The mistake of the majority is illustrated by the recent case of
Esty v. State, 642 So. 2d 1074, 1076 (Fla. 1994), where the trial court
overrode the jury’s life recommendation and found the HAC and CCP
aggravators, the statutory mitigator of no significant prior criminal
history, and no nonstatutory mitigation. In reversing the improper
override, we explained the Tedder standard and its application:

              For a trial judge to override a jury recommendation
      of life, ‘the facts suggesting a sentence of death should be
      so clear and convincing that virtually no reasonable
      person could differ.’ Tedder v. State, 322 So. 2d 908,
      910 (Fla. 1975). An override is improper if there is a
      reasonable basis in the record to support the jury’s
      recommendation. Ferry v. State, 507 So. 2d 1373, 1376
      (Fla. 1987). The record in this case reveals a number of
      factors that support the jury’s recommendation, including
      Esty’s age of eighteen at the time of the murder, his lack
      of a criminal history, his potential for rehabilitation, and
      the possibility that he acted in an emotional rage. Thus,
      we conclude that jury override was improper because the
      jurors could have relied on these factors established in
      the record to recommend a life sentence in this case.

Id., 642 So. 2d at 1080 (emphasis supplied). Similarly, in Strausser v.
State, 682 So. 2d 539, 542 (Fla. 1996), we found that the trial court’s
override failed the Tedder standard because “there was vast mitigation
to support the jury’s recommendation.” Likewise, we have just
recently again reaffirmed this enduring standard in reversing the trial
court’s override of the jury’s recommendation of a life sentence in
Pomeranz v. State, 703 So. 2d 465, 471 (Fla. 1997), the latest of a
series of recent cases wherein we have consistently reaffirmed Tedder.
See Marta-Rodriguez v. State, 699 So. 2d 1010, 1012-1013 (Fla.
1997); Jenkins v. State, 692 So. 2d 893, 895 (Fla. 1997); Boyett v.
State, 688 So. 2d 308, 310 (Fla. 1996).


                                   -5-
        The majority has not considered the facts in a light most
favorable to the recommendation of the jury, as we are required to do,
or acknowledged the unchallenged reasonable basis in the record
supporting the jury’s vote as to Anna’s death. Further, the majority
has ignored not only the evidence and inferences therefrom that would
support the jury’s recommendation, but has also ignored the fact that
even the jury vote recommending death was by a slim seven to five
margin, one vote away from a life recommendation for the appellant.
Hence, the majority, in direct violation of the law and our decision in
Tedder has substituted its subjective analysis of the facts for the views
of the sworn and death-qualified jurors, who not only could have had
reasonable but differing views as to whether death was appropriate,
but did have those views and openly expressed them. The majority
has apparently concluded that because its members would not have
extended mercy, the views of the twelve citizens sitting on this jury
extending mercy will be ignored.
        There can be no legitimate dispute that the jury had an
abundance of evidence upon which it could have based its life
recommendation for Anna’s death. Indeed, the extensive mitigation
found by the trial court in this case is vastly greater than that found in
the cases discussed above and, both in its nature and degree, is unique.
Even the trial judge, who obviously disagreed with the jury’s
recommendation, acknowledged the existence of the unusual extent of
the mitigation and found two statutory mitigators, no significant prior
criminal history and under the influence of an extreme mental or
emotional disturbance, and gave varying degrees of weight to some
fourteen (14) nonstatutory mitigators, ranging from substantial to
slight weight. On such a record there is simply no way that we can
properly conclude that there is no “reasonable basis in the record to
support the jury’s recommendation.”
        ....
        As we approach the 21st century of our civilization, do we
really want to take a law (the trial judge’s sentencing discretion) that
was intended to act as a rational check on a jury possibly voting for
death based upon an emotional appeal, and twist that law so as to use
it as a sword for the judiciary to emotionally trump a jury acting with
reasoned mercy?




                                  -6-
Zakrzewski, 717 So. 2d at 496-97 (Anstead, J., concurring in part and dissenting in

part) (last emphasis added) (footnote omitted).

      The bottom line is that, in light of Hurst, we should at least reconsider our

case law on judicial overrides. Only three defendants stand sentenced to death as a

result of a judicial override. Zakrzewski’s sentence was the most recent of the

judicial override sentences that this Court affirmed, and we have not affirmed a

judicial override on direct appeal since Zakrzewski’s case. Further, the cases upon

which this Court relied to uphold jury overrides—Spaziano v. Florida, 468 U.S.

447 (1984), and Hildwin v. Florida, 490 U.S. 638 (1989)—have now been

overruled by the United States Supreme Court in Hurst v. Florida. See, e.g.,

Marshall v. Crosby, 911 So. 2d 1129, 1135 (Fla. 2005).

      As this Court has explained, when a jury recommends a sentence of life, “a

majority of a twelve-person jury concluded that . . . the record before them . . .

compelled a life recommendation.” Keen v. State, 775 So. 2d 263, 284 n.19 (Fla.

2000). Since Zakrzewski’s case, the Court has emphasized the “fundamental

distinction . . . between a defendant who receives an advisory sentence of death

from a jury as opposed to one who receives an advisory sentence of life.” Weaver

v. State, 894 So. 2d 178, 200 (Fla. 2004); see Coleman v. State, 64 So. 3d 1210,

1225-27 (Fla. 2011). After Hurst v. Florida and Hurst, which emphasized the

critical importance of the jury’s findings and ultimate sentence recommendation in


                                         -7-
capital sentencing, this distinction is even clearer. Thus, I would grant Hurst relief

to Zakrzewski for his third sentence of death that resulted from a judicial override.

      Although granting relief to Zakrzewski based on the judicial override in his

case would not disturb Zakrzewski’s other two “bare majority” death sentences,

recognizing that judicial overrides warrant relief under Hurst would afford relief to

the two other pre-Ring defendants whose sentences were the product of the clearly

unconstitutional judicial override. See Marshall, 2017 WL 1739246, at *1-3

(Labarga, J., dissenting).

Original Proceeding – Habeas Corpus

Martin J. McClain of McClain & McDermott, P.A., Wilton Manors, Florida,

      for Petitioner

Pamela Jo Bondi, Attorney General, and Carolyn M. Snurkowski, Assistant
Deputy Attorney General, Tallahassee, Florida,

      for Respondent




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