          Supreme Court of Florida
                                  ____________

                                  No. SC15-1823
                                  ____________

                          MATTHEW LEE CAYLOR,
                                Appellant,

                                        vs.

                             STATE OF FLORIDA,
                                  Appellee.

                                  ____________

                                  No. SC16-399
                                  ____________

                          MATTHEW LEE CAYLOR,
                                Petitioner,

                                        vs.

                             JULIE L. JONES, etc.,
                                 Respondent.

                                  [May 18, 2017]

PER CURIAM.

      Matthew Lee Caylor appeals an order of the circuit court denying his motion

to vacate his conviction of first-degree murder and sentence of death filed under

Florida Rule of Criminal Procedure 3.851 and petitions this Court for a writ of
habeas corpus. We have jurisdiction. See art. V, § 3(b)(1), (9), Fla. Const. For the

reasons stated below, we grant Caylor’s petition for a writ of habeas corpus, vacate

Caylor’s death sentence, and remand for a new penalty phase. We affirm,

however, the trial court’s denial of postconviction relief.

                    FACTS AND PROCEDURAL HISTORY

      Following a jury trial, Matthew Caylor was convicted of first-degree murder,

sexual battery involving great physical force, and aggravated child abuse for the

2008 murder of Melinda Hinson. Caylor v. State, 78 So. 3d 482, 486 (Fla. 2011).

The jury recommended death by a vote of eight to four, which the trial court

followed in its sentencing order. Id. This Court set forth the following facts on

direct appeal:

             In July 2008, Melinda Hinson was living with her mother, her
      mother’s boyfriend, her fifteen-year-old brother, and Daryl Lawton, a
      family friend, in a single room at the Valu-Lodge Motel in Panama
      City. The family had moved to Florida from Kentucky in December
      2007 and Lawton came to live with the family soon after. Due to
      strained finances, all five moved to the motel in mid-June. The room
      was crowded and the children did not have school during the summer,
      so Melinda would spend most of her time by the motel’s pool.
      Melinda would also walk two dogs belonging to Scott Heinze and
      Tyler Nichols, who also lived at the motel, while Heinze and Nichols
      were at work.
             According to the motel’s records, Matthew Caylor checked into
      the motel on June 25, 2008. At trial, Lawton testified that prior to the
      date of Melinda’s disappearance, he had only spoken with Caylor a
      few times and that he had never seen Melinda or her brother speak
      with Caylor. However, at around noon on July 8, Caylor came to
      Lawton and asked to borrow some duct tape, which Lawton took to
      Caylor’s room. Later in the day, Caylor called Lawton and asked if

                                         -2-
he could also borrow a steak knife. Again, Lawton went to Caylor’s
room to take him the item. Lawton recalled that Melinda and her
brother accompanied him on one of these occasions, but said that they
did not speak to Caylor.
        Melinda was last seen alive shortly after 5 p.m. on July 8, when
she returned Heinze and Nichols’ dogs to their room after taking the
dogs for a walk. When Melinda did not return to her family’s room,
the family first asked Heinze and Nichols whether they had seen her.
Heinze told the family that he had last seen Melinda when she
returned the dogs to their room. The family then searched the motel
and the surrounding area. When they could not find Melinda, they
called the police and reported that the girl was missing.
        Melinda’s body was discovered on the morning of July 10,
hidden under a bed in a room two doors down from Heinze and
Nichols’ room. The body was found naked and lying face-down. The
discovery was made by a housekeeper who was following the motel’s
requirement of checking under the beds for trash. Although the room
had been cleaned the previous day, the first housekeeper to clean the
room testified that she did not look under the bed that day because her
back was hurting. A review of the motel’s records revealed that
Matthew Caylor had been renting the room on the day of Melinda’s
disappearance. Officers of the Panama City Police Department
subsequently learned that Caylor had been arrested in connection with
a different criminal matter and that he was already in the custody of
the Bay County Sheriff’s Department.
        Detective Mark Smith of the Panama City Police Department
testified at trial that he interviewed Caylor after the body was
discovered. He was accompanied by Investigator Mike Wesley of the
Bay County Sheriff’s Department, who had interrogated Caylor
following the initial arrest. When Smith and Wesley went to see
Caylor, Caylor said that he was glad to see the officers because he
wanted to talk to them. The officers read Caylor his Miranda [v.
Arizona, 384 U.S. 436 (1966),] rights, which he waived. In the
interrogation that followed, Caylor confessed to the murder of
Melinda Hinson and described the circumstances leading up to the
crime. Based on Caylor’s statements and evidence recovered from the
crime scene, Caylor was charged with first-degree murder (based on
both premeditation and felony murder theories of the offense), see
§ 782.04(1)(a) 1.-2., Fla. Stat. (2008), sexual battery involving great


                                 -3-
physical force, see § 794.011(3), Fla. Stat. (2008), and aggravated
child abuse, see § 827.03(2), Fla. Stat. (2008).
       In statements made initially to the police officers and later to
the trial court, Caylor gave the following account of the murder and
the events leading up to it. In the summer of 2008, Caylor was on
felony probation in the State of Georgia based on an incident that had
occurred several years before in which he was accused of molesting
the fourteen-year-old daughter of a neighbor. Caylor asserted that he
was falsely accused, but said that on his attorney’s advice he pled
guilty to avoid a possible prison sentence. He was later required to
register as a sex offender after violating the terms of his probation by
being convicted of possession of cocaine. Caylor stated that after
several years he became frustrated with the restrictions placed on him
as a sex offender, and said that he told his probation officer that he
would rather serve time in jail and be done with the sentence. Caylor
said that he then went to Panama City to relax because he thought he
would have to spend approximately a year and a half in jail. Caylor
admitted that he had not been given permission by his probation
officer to leave Georgia, even though he knew he was required to
receive such permission by Georgia law.
       Caylor decided to rent a room at the Valu-Lodge Motel because
it was close to the beach. While in Panama City, Caylor began selling
cocaine and methamphetamine. He said that he also became friends
with “two Russian girls,” and that he became romantically involved
with one of the girls, Marina. He said that he discovered on July 8
that the women had stolen some of his drugs. Caylor said that he
borrowed a knife and duct tape with the intent of using it to threaten
them to get his drugs back. He subsequently went to the women’s
apartment, taking the knife and duct tape with him. Caylor said that
he became violent during that encounter and decided to go back to his
room at the motel. He was later arrested for the incident at the
apartment.
       During his interrogation, Caylor told Smith and Wesley that he
returned to his motel room immediately after the incident at the
women’s apartment. He said that he had been back in his room for
only a few minutes when Melinda Hinson knocked on his door and
asked him for a cigarette. He told the officers that at the time Melinda
came to his room, he felt that he had “been through all of this because
of something I didn’t do,” and told the officers that he decided he was
“going to make it worth it.” When asked during the Spencer hearing

                                  -4-
what he meant by these statements, Caylor responded that he meant he
was angry about his prior conviction for child molestation. He told
the trial court he felt that “[i]f I’m going to be in trouble for having
sex with this girl being in my room, I might as well have sex with this
girl.”
       After Melinda entered the room, Caylor said that she sat down
on the bed and that they began smoking. He asked her what she had
been doing. Melinda replied that she had just finished walking a dog
that belonged to the men in the next room. Caylor asked how old she
was and she told him that she was thirteen. He said that he asked her
why she hung out with the guys next door. Melinda responded that
“they think they’re hot stuff” but said that she “[did]n’t really like
them.” According to Caylor, Melinda then told him that she thought
he was “hot,” moved close to him on the bed and put her arm around
him. Caylor said that they started kissing, that he took her clothes off,
and that they started having sex.
       Caylor said that at some point he “just started choking her.” He
claimed that they had stopped having sex just before he began to
strangle her. He said that he “wasn’t into it” and that the intercourse
lasted for only thirty to forty-five seconds. However, he said that they
were still naked when he began to strangle her and that he was still on
top of her. Caylor said that when he began to choke Melinda, “she
was flipping out and I just wanted her to go away.” He said that she
began fighting him and saying, “[L]et me ask you a question, let me
ask you a question,” and that during the struggle they fell from the bed
to the floor. Caylor told the officers that he then unplugged the phone
cord from the wall and wrapped it around her neck. The officers
asked whether Melinda was moving when he began to strangle her
with the cord, and Caylor responded: “Well, yeah, it was like no, no,”
When he thought Melinda was dead, he released her and plugged the
phone cord back into the wall. He then lifted up the mattress and
placed Melinda and her clothes under the bed. He said that he
gathered his things and left the room.
       Detective Smith asked Caylor why he decided to kill Melinda:

      [Detective Smith:] Well, is your thoughts that now I’ve had sex
with her she’s going to tell? Is that what led to that she has to die?

        [Caylor:] No, it wasn’t like that, no, it wasn’t like that, it was
just like, it was like, more or less like you’re the fucking reason why

                                   -5-
I’m in this situation I’m in now because I did the right thing. I think it
was more of a hate, like a hate, like I was really angry, I think is what
it was.

       [Detective Smith:] A hate for her or a hate the fact [sic] that
she’s 13 years old.

      [Caylor:] That she was 13 coming on to me.

       Caylor said that when Melinda came into his room, he was “all
pissed off about everything that has happened, not to mention the fact
of what just happened at Marina’s house.” He said that Melinda “just
kind of walked up at the wrong, with, you know, with that same bull
shit, man, at the wrong time.”
       At trial, the State called several witnesses to describe physical
evidence recovered from the crime scene. Brenda Pelfrey, a crime
scene investigator, identified photographs of the motel room where
the body was discovered. She stated that the victim’s clothes, which
were found underneath the body, were not ripped or torn and that
there was no blood on the victim’s underwear. Pelfrey was also
present during the autopsy, where she collected a sexual assault kit.
Trevor Seifert, a crime lab analyst, testified that he found Melinda’s
DNA on portions of the phone cord removed from the motel room,
and that Caylor was a possible contributor to scrapings taken from
under Melinda’s fingernails. Seifert also stated that vaginal swabs
from the victim tested positive for blood and semen, and that Caylor’s
DNA profile matched these samples.
       The jury also heard testimony from Dr. Michael Hunter, the
medical examiner who conducted the autopsy. Dr. Hunter stated that
during the examination he observed considerable injuries to the
victim’s neck. He found that some of these injuries were consistent
with strangulation by hand, while other straight-line markings showed
strangulation by ligature. He agreed that the latter markings could
have been inflicted through the use of a telephone cord. Dr. Hunter
noted that there were multiple straight-line abrasions, which indicated
application and reapplication of the ligature. He determined that these
markings were most likely inflicted while the victim was still alive.
He also observed bleeding in the victim’s eyes, which provided
further evidence of strangulation. Dr. Hunter ultimately concluded
that the cause of death was strangulation. He said that the victim

                                  -6-
would have been in pain while she was conscious, and noted that there
was no evidence of any head trauma that might have impaired her
ability to feel pain or made her unaware of what was happening
around her.
        In addition to evidence of strangulation, Dr. Hunter observed
other injuries on the body, including a bruise on the victim’s arm, a
small abrasion on her left ankle, and another large bruise that
extended over the length of the left side of her clavicle. He said that
there was considerable bleeding underneath the clavicle bruise.
Additionally, Dr. Hunter observed discoloration in the victim’s pubic
area, although he said that this injury could have occurred during
consensual sex. He noted that the victim was menstruating at the time
of death, but found no indication as to whether she was sexually
active. He said that the victim’s blood tested positive for nicotine but
negative for drugs or alcohol.
        After the jury convicted Caylor of all three charged offenses, a
penalty proceeding was held. The State’s only witness at this
proceeding was Thomas Shakitra, who testified that he was employed
as a probation officer with the State of Georgia. Shakitra stated that in
2008, he was supervising Caylor, who was on felony probation.
Following this testimony, the defense stipulated that Caylor had a
prior felony conviction in Georgia.
        The defense called four witnesses during the penalty phase.
The appellant’s parents, Kimberly and Kerry Caylor, testified that
they were both addicted to amphetamines while the appellant was a
child and that for a time the family had no money and lived in a trailer
with no power. Both parents testified that the appellant had an
abusive relationship with his father, began abusing drugs at a young
age, and suffered from emotional problems. A third defense witness
testified that he worked with the appellant as a mechanic in Jasper,
Georgia, and described the appellant’s drug problems. The final
defense witness was a veterinarian who testified that Matthew Caylor
had worked in the kennel area of his office for several months. He
stated that Caylor was a good employee and treated the animals well.
At the end of the proceeding, the jury recommended the death penalty
by a vote of eight to four.
        The trial court held a Spencer hearing on November 18, 2009.
Caylor testified in his own defense and described the events preceding
the murder. He said that contrary to his initial statement to the police,
he had used a large amount of drugs on the day of the homicide. He

                                  -7-
      stated that he decided to have sex with Melinda because he was angry
      about the fact that he had been on probation for eight years for an
      offense he did not commit, and that he was angry because he found
      himself in a similar situation with a thirteen-year-old girl. He said
      that he did not rape Melinda and that he was remorseful for killing
      her.
              In its written sentencing order, the trial court found and
      assigned weight to the following aggravating circumstances: (1) the
      capital felony was committed by a person previously convicted of a
      felony and under a sentence of imprisonment or placed on community
      control or on felony probation (great weight); (2) the capital felony
      was committed while the defendant was engaged in the commission of
      sexual battery and aggravated child abuse (great weight); and (3) the
      capital felony was especially heinous, atrocious, or cruel (“HAC”)
      (great weight). The court found the following mitigating
      circumstances: (1) dysfunctional family (little weight); (2) under the
      influence of an extreme mental or emotional disturbance (some
      weight); (3) compassionate to animals and good employee (little
      weight); (4) learning difficulties (very little weight); and (5) remorse
      (little weight).
              The trial court concluded that the nature and quality of the
      mitigating factors “pale[d] in comparison” to the enormity of the
      aggravating circumstances. Furthermore, the court determined that
      the aggravating circumstances clearly and convincingly outweighed
      the mitigating factors. Based on these determinations, the trial court
      imposed a sentence of death.
Id. at 486-91 (footnotes omitted). On appeal, Caylor raised six claims1 and this



       1. Caylor argued: (1) the trial court erred in denying his motion for
judgment of acquittal on the offense of aggravated child abuse; (2) the trial court
erred in denying his motion for judgment of acquittal on the offense of sexual
battery involving great force; (3) the trial court erred in finding as an aggravating
circumstance that he committed the murder while on felony probation; (4) the trial
court erred in assigning “little weight” to the “dysfunctional family” and “remorse”
mitigating circumstances; (5) death is a disproportionate punishment; (6) Florida’s
death penalty is unconstitutional under the holding of Ring v. Arizona, 536 U.S.
584 (2002). Caylor, 78 So. 3d at 491.


                                        -8-
Court affirmed the convictions and sentences. Id. at 502. The United States

Supreme Court denied certiorari on May 14, 2012. Caylor v. Florida, 132 S. Ct.

2405 (2012).

      On May 2, 2013, Caylor filed his original postconviction motion. The

motion raised six claims.2 On August 7, 2013 the court conducted a Huff3 hearing

and summarily denied claim 1 (in part) and claim 3 (in part), with the court

reserving ruling on whether claim 4 required further evidentiary consideration.

The court granted an evidentiary hearing on claim 1 (in part), regarding Juror

Marianne Moore, claim 2, regarding counsel’s failure to investigate and present

mitigation evidence during the penalty phase and claim 3 (in part), regarding

counsel’s failure to have a mental health professional testify with respect to

Caylor’s mental state during the penalty phase. The remaining claims were to be




       2. Caylor argued: (1) trial counsel was ineffective during voir dire for
failing to challenge jurors, properly inquire of them, and to move to strike the
entire panel; (2) trial counsel was ineffective during the penalty phase for failing to
investigate and present mitigation evidence; (3) trial counsel was ineffective during
the penalty phase for failing to use a mental health expert to present evidence of
mental health mitigation; (4) denial of constitutional rights due to Rule of
Professional Conduct 4-3.5(d)(4) prevented trial counsel from interviewing jurors
and is unconstitutionally vague; (5) execution by lethal injection violates the
Eighth Amendment prohibition against cruel and unusual punishment; and (6)
cumulative error.

      3. Huff v. State, 622 So. 2d 982 (Fla. 1993).



                                         -9-
resolved without an evidentiary hearing. The evidentiary hearing took place on

June 1–2, 2015. Following the evidentiary hearing, the court filed a final order

denying Caylor’s postconviction motion on September 9, 2015. This appeal

followed.

                       RULE 3.851 MOTION ON APPEAL

      Caylor has raised the following five issues on this appeal: (1) trial counsel

was ineffective for his investigation and presentation of mitigation evidence at the

penalty phase; (2) trial counsel was ineffective for not ensuring that Caylor receive

a reasonably competent mental health evaluation for mitigation; (3) the trial court

erred in summarily denying Caylor’s claim that counsel was ineffective for failing

to challenge Juror Weaver; (4) the trial court erred in summarily denying the claim

that trial counsel was ineffective for failing to ask any of the jurors about their

views on mental health, addiction, remorse, rehabilitation, mercy, experts, or any

other potential mitigation; and (5) cumulative error. Because we find that Caylor

is entitled to a new penalty phase, we only address issue three concerning Juror

Weaver. As to this issue, we affirm the trial court’s ruling and its denial of

Caylor’s postconviction motion.

                                    Juror Weaver

      Caylor argues that the trial court erred in summarily denying that counsel

was ineffective for failing to challenge Juror Weaver. According to Caylor, Juror


                                         - 10 -
Weaver indicated that she was not sure if she could be impartial, knew one of the

witnesses, and was once the victim of a crime. The postconviction court

summarily denied this claim, finding that Caylor failed to show that an actually

biased juror sat on the jury panel.

      A defendant is entitled to an evidentiary hearing on a postconviction motion

unless: (1) the motion, files, and records in the case conclusively show that the

movant is entitled to no relief, or (2) the motion or particular claim is legally

insufficient. Valentine v. State, 98 So. 3d 44, 54 (Fla. 2012). A postconviction

court’s decision on whether to grant an evidentiary hearing is a pure question of

law, reviewed de novo. Mann v. State, 112 So. 3d 1158, 1162 (Fla. 2013). For a

defendant to show that his trial counsel was ineffective during the jury selection

process for failing to remove a juror from the panel, that defendant must show that

an actually biased juror sat on his jury. Carratelli v. State, 961 So. 2d 312, 324

(Fla. 2007).

      In support of his claim, Caylor relies on the following colloquy with Juror

Weaver:

      THE COURT: No. Have you ever been a victim of crime or the party
      in a lawsuit?
      JUROR WEAVER: I had a wallet stolen.
      THE COURT: Okay, would that affect your ability to sit on this case?
      JUROR WEAVER: This one might.
      THE COURT: Pardon?
      JUROR WEAVER: This might.


                                         - 11 -
      THE COURT: Okay. Do you think because of that, you wouldn’t be
      able to sit on this case or other reasons?
      JUROR WEAVER: I can sit.
      THE COURT: Okay. Let’s see. Have you had any experiences with
      the State Attorney’s office or law enforcement that would influence
      your decision?
      JUROR WEAVER: No, ma’am.
      ....
      THE COURT: And do you feel that you could be fair and impartial
      on this case?
      JUROR WEAVER: I might.
      THE COURT: Pardon?
      JUROR WEAVER: I might.
      THE COURT: You might. You’re not sure?
      JUROR WEAVER: No ma’am.

Caylor also relies on questioning by the State during voir dire that revealed that

one of the witnesses, Margaret Davis, was the aunt of Juror Weaver’s two

daughters:

      JUROR WEAVER: Margaret Davis.
      MS. BASFORD: Margaret Davis, yes, ma’am. You know Ms.
      Davis?
      JUROR WEAVER: Yes.
      MR. BASFORD: How do you know Ms. Davis?
      JUROR WEAVER: The lady who worked at the hotel?
      MR. BASFORD: Yes, ma’am.
      JUROR WEAVER: She’s my two daughters’ aunt.
      MR. BASFORD: Excuse me?
      JUROR WEAVER: She’s my two daughters’ aunt.
      MR. BASFORD: She’s your two daughters’ aunt?
      JUROR WEAVER: Uh huh.
      MR. BASFORD: Oh, okay, okay. Well, she is going to be a witness
      in this case. Now, my question is, usually we don’t have people that
      are, you know, that closely related. Do you see her that often,
      ma’am?
      JUROR WEAVER: No.


                                        - 12 -
      MR. BASFORD: Okay. If she testifies, and well, there’s no if, she is
      going to testify, Good Lord willing she’s going to testify, could you
      weigh and evaluate her testimony as you would that of the other
      witnesses in this case?
      JUROR WEAVER: Yes.
      MR. BASFORD: The Judge will give you some criteria to judge the
      witnesses’ testimony. But you could do that?
      JUROR WEAVER: Yes, sir.

      We agree with the postconviction court’s determination and find that the

record refutes any claim that an actually biased juror sat on the jury. In regards to

Juror Weaver’s comment that she was not sure if she could be impartial, Mr.

Basford later rehabilitated her through the following exchange:

      MR. BASFORD: All right. I’ve got a question mark down here
      whether or not you could be impartial. How do you feel about it after
      sitting here this far in this case?
      JUROR WEAVER: I’m in favor of the death penalty.
      MR. BASFORD: Okay.
      JUROR WEAVER: In some cases.
      MR. BASFORD: In some cases you’re in favor of the death penalty.
      Do you think you can be fair and impartial in this case?
      JUROR WEAVER: Yes, sir.

Additionally, Juror Weaver stated that in regard to Margaret Davis, she would

weigh and evaluate her testimony as she would the other witnesses. She also stated

that she did not see Margaret Davis that often. As evidenced by the record, trial

counsel was not ineffective because Juror Weaver clearly indicated that she could

be fair and impartial, and there is no evidence that she was actually biased.

Consequently, we deny relief as to this claim.




                                        - 13 -
                               HABEAS PETITION

      Caylor raises three claims in his petition for writ of habeas corpus filed with

this Court. He contends that (1) section 775.082(2) requires that all death-

sentenced capital felons receive life sentences without parole; (2) he is entitled to a

new penalty phase under Hurst v. Florida, 136 S. Ct. 616 (2016), because the jury

verdict at the sentencing phase was not unanimous; and (3) appellate counsel

provided ineffective assistance of counsel by failing to raise an Ake v. Oklahoma,

470 U.S. 68 (1985), claim on direct appeal. As mentioned previously, we find

merit in Caylor’s second claim and grant him a new penalty phase.

                          Application of Hurst v. Florida

      Caylor argues that he is entitled to a new penalty phase under Hurst v.

Florida, because the jury verdict at the sentencing phase was not unanimous.

During the pendency of Caylor’s case, the United States Supreme Court found

Florida’s death penalty scheme unconstitutional. Hurst v. Florida, 136 S. Ct. at

619. We have interpreted Hurst v. Florida to require a jury to unanimously find

each aggravating factor, that the aggravating factors are sufficient to warrant death,

and that the aggravating factors outweigh the mitigation. See Hurst v. State, 202

So. 3d 40, 57-58, 66-69 (Fla. 2016). We have also determined that most

defendants sentenced to death after the Ring decision should receive the benefit of




                                         - 14 -
Hurst. See Mosley v. State, 209 So. 3d 1248 (Fla. 2016). Caylor, whose sentence

was final in 2012, is one such defendant.

      Because Hurst applies to Caylor, we must consider whether it is clear

beyond a reasonable doubt that a rational jury would have unanimously found all

the facts necessary for the imposition of death and unanimously recommended

death, such that any Hurst error is harmless. See Mosley, 209 So. 3d at 1284. In

this case, the jury’s recommendations of death were not unanimous and the jury

made no findings concerning the aggravating and mitigating circumstances. The

jury recommended death for the murder of Melinda Hinson by a vote of eight to

four. Therefore, we cannot conclude that the error in Caylor’s penalty phase was

harmless beyond a reasonable doubt. Accordingly, Caylor is entitled to a new

penalty phase.4

                                Section 775.082(2)

      Caylor also argues that section 775.082(2), Florida Statutes (2016), requires

that all death sentenced capital felons receive life sentences without parole. We

previously rejected this claim in Hurst. Hurst, 202 So. 3d at 65 (“[W]e conclude

that the statute does not mandate automatic commutation to life sentences after the




      4. Because we find that Caylor is entitled to a new penalty phase, we do not
address Caylor’s argument that appellate counsel was ineffective for failing to raise
an Ake claim on direct appeal.


                                       - 15 -
decision in Hurst v. Florida.”). Therefore, we deny Caylor’s claim that he is

entitled to a life sentence under section 775.082(2).

                                  CONCLUSION

      For the reasons stated above, we affirm the trial court’s denial of

postconviction relief. However, we grant Caylor habeas relief, vacate his death

sentence as unconstitutional under Hurst, and remand to the trial court for a new

penalty phase.

      It is so ordered.

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

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

POLSTON, J., concurring in part and dissenting in part.

      I concur with the majority’s decision except its vacating of the death

sentence pursuant to Hurst.

CANADY and LAWSON, JJ., concur.

An Appeal from the Circuit Court in and for Bay County,
     James Ball Fensom, Judge - Case No. 032008CF002244XXAXMX
And an Original Proceeding – Habeas Corpus

Michael P. Reiter, Ocala, Florida,

      for Appellant/Petitioner




                                        - 16 -
Pamela Jo Bondi, Attorney General, Tallahassee, Florida; and Marilyn Muir
Beccue, Assistant Attorney General, Tampa, Florida,

      for Appellee/Respondent




                                     - 17 -
