          Supreme Court of Florida
                                    ____________

                                   No. SC17-1269
                                   ____________

                             DUSTY RAY SPENCER,
                                  Appellant,

                                          vs.

                              STATE OF FLORIDA,
                                   Appellee.

                                  November 8, 2018

PER CURIAM.

      Dusty Ray Spencer, a prisoner under sentence of death, appeals the circuit

court’s order summarily denying his successive motion for postconviction relief,

which was filed under Florida Rule of Criminal Procedure 3.851. We have

jurisdiction. See art. V, § 3(b)(1), Fla. Const.

      Spencer was convicted of the 1992 first-degree murder of his wife, Karen

Spencer. Spencer v. State, 645 So. 2d 377, 380 (Fla. 1994), cert. denied, 522 U.S.

884 (1997). The jury recommended a death sentence by a seven to five vote, and

the trial judge followed the jury’s recommendation and imposed a sentence of

death. Id. We affirmed Spencer’s conviction on direct appeal. Id. at 383. As to

the death sentence, we concluded that the trial court improperly found an
aggravating factor—that the murder was cold, calculated, and premeditated—and

improperly failed to consider the statutory mental mitigating circumstances of

extreme disturbance and impaired capacity; thus, we vacated the death sentence

and remanded the case for reconsideration of the sentence by the judge. Id. at 385.

On remand, the trial court again imposed a sentence of death, and we affirmed the

sentence. Spencer v. State, 691 So. 2d 1062, 1063, 1066 (Fla. 1996), cert. denied,

522 U.S. 884 (1997). Spencer’s sentence became final in 1997 when the United

States Supreme Court denied certiorari review. See Fla. R. Crim. P. 3.851(d)(1)(B)

(stating that for the purposes of filing postconviction claims under rule 3.851, a

judgment and sentence become final “on the disposition of the petition for writ of

certiorari by the United States Supreme Court, if filed”).

      In 2003, we affirmed the denial of Spencer’s initial motion for

postconviction relief and denied his petition for a writ of habeas corpus. Spencer

v. State, 842 So. 2d 52, 58 (Fla. 2003). In 2009, we affirmed the summary denial

of Spencer’s first successive motion for postconviction relief. Spencer v. State, 23

So. 3d 712 (Fla. 2009) (table). In January 2017, Spencer filed a successive motion

to vacate his death sentence in light of Hurst v. Florida, 136 S. Ct. 616 (2016), and

Hurst v. State (Hurst), 202 So. 3d 40 (Fla. 2016), cert. denied, 137 S. Ct. 2161

(2017). In April 2017, the circuit court summarily denied the motion. This appeal

follows. During the pendency of this case in this Court, we directed the parties to


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file briefs addressing why the circuit court’s order should not be affirmed based on

our precedent in Hitchcock v. State, 226 So. 3d 216, 217 (Fla.), cert. denied, 138 S.

Ct. 513 (2017).

      In Hitchcock, we held that “our decision in Asay [v. State, 210 So. 3d 1, 22

(Fla. 2016), cert. denied, 138 S. Ct. 41 (2017),] forecloses relief” under Hurst for

defendants whose convictions and sentences were final prior to the United States

Supreme Court’s decision in Ring v. Arizona, 536 U.S. 584 (2002). See also

Lambrix v. State, 227 So. 3d 112, 113 (Fla.) (rejecting Lambrix’s argument that the

Eighth Amendment, equal protection, and due process require that Hurst be

applied retroactively to Lambrix even though his sentences were final prior to

Ring), cert. denied, 138 S. Ct. 312 (2017). Thus, because his sentence became

final prior to Ring, Spencer is not entitled to Hurst relief.

      Nor is Spencer entitled to relief on his other claims. Spencer’s claim that he

should have been entitled to have a jury reweigh the aggravation and mitigation

when his case was remanded for reconsideration of the sentence by the trial judge

in 1994 is untimely and procedurally barred. Spencer’s assertion that his death

sentence cannot withstand Eighth Amendment scrutiny because this Court’s refusal

to grant him Hurst relief is arbitrary and capricious does not present a basis for

relief. This “argument is not novel and has been previously rejected by this

Court.” Asay v. State, 224 So. 3d 695, 703 (Fla. 2017). And Spencer’s claim that


                                          -3-
his death sentence violates Caldwell v. Mississippi, 472 U.S. 320 (1985), and the

Eighth Amendment is foreclosed by our recent decision in Reynolds v. State, 251

So. 3d 811, 825 (Fla. 2018), petition for cert. filed, No. 18-5181 (U.S. July 3,

2018), in which we held that “a Caldwell claim based on the rights announced in

Hurst and Hurst v. Florida cannot be used to retroactively invalidate the jury

instructions that were proper at the time under Florida law” (citing Romano v.

Oklahoma, 512 U.S. 1, 9 (1994)). Accordingly, we affirm the circuit court’s order

summarily denying Spencer’s successive motion for postconviction relief.

      It is so ordered.

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

ANY MOTION FOR REHEARING OR CLARIFICATION MUST BE FILED
WITHIN SEVEN DAYS. A RESPONSE TO THE MOTION FOR
REHEARING/CLARIFICATION MAY BE FILED WITHIN FIVE DAYS
AFTER THE FILING OF THE MOTION FOR REHEARING/CLARIFICATION.
NOT FINAL UNTIL THIS TIME PERIOD EXPIRES TO FILE A
REHEARING/CLARIFICATION MOTION AND, IF FILED, DETERMINED.

PARIENTE, J., dissenting.

      I dissent. While I realize that this Court’s precedent directs us to affirm

Spencer’s death sentence,1 in my view, the combination of several critical and


      1. See Hitchcock v. State, 226 So. 3d 216 (Fla.), cert. denied, 138 S. Ct. 513
(2017); Asay v. State (Asay V), 210 So. 3d 1 (Fla. 2016), cert. denied, 138 S. Ct. 41
(2017); Mosley v. State, 209 So. 3d 1248 (Fla. 2016).


                                         -4-
unique factors in this case mandate a new penalty phase under Hurst.2 The most

critical error was the complete absence of a jury in the last determination that

Spencer should be sentenced to death after this Court struck the aggravating factor

that the murder was committed in a cold, calculated, and premeditated manner

(CCP) and remanded for reconsideration by the trial judge.

      After the jury nonunanimously recommended a sentence of death by a vote

of seven to five—the barest of majority—this Court determined on direct appeal

that (1) the jury and trial judge, in sentencing Spencer to death, improperly

considered the aggravating factor of CCP, and (2) the trial court improperly failed

to consider statutory mitigation in sentencing Spencer to death. See Spencer v.

State, 691 So. 2d 1062, 1063 (Fla. 1996); Spencer v. State, 645 So. 2d 377, 384

(Fla. 1994).

      Based on this Court’s “rejection of the CCP aggravating factor and the trial

court’s failure to consider the statutory mental mitigating circumstances of extreme

disturbance and impaired capacity,” this Court vacated Spencer’s sentence of death

and “remand[ed] th[e] case for reconsideration of the death sentence by the judge.”



      2. Hurst v. State (Hurst), 202 So. 3d 40 (Fla. 2016), cert. denied, 137 S. Ct.
2161 (2017); see Hurst v. Florida, 136 S. Ct. 616 (2016). I would further note that
Spencer raised the unconstitutionality of Florida’s death penalty on direct appeal in
1994—years before Ring—arguing that “Florida’s death penalty is
unconstitutional.” Spencer v. State, 645 So. 2d 377, 384 (1994). Without
discussion, this Court summarily rejected that argument. Id.

                                         -5-
Spencer, 645 So. 2d at 385. Despite clear precedent that this Court should have

reviewed whether striking the CCP aggravator was harmless beyond a reasonable

doubt,3 this Court did not and, instead of reversing for a new penalty phase in front

of a jury, remanded for reconsideration by the trial court alone. See Spencer, 645

So. 2d at 384-85. After reviewing the evidence on remand, the trial judge again

imposed death, finding two aggravating factors and three statutory mitigating

circumstances. Spencer, 691 So. 2d at 1063.4




       3. Williams v. State, 967 So. 2d 735, 765 (Fla. 2007) (“When this Court
strikes an aggravating factor on appeal, ‘the harmless error test is applied to
determine whether there is no reasonable possibility that the error affected the
sentence.’ ” (quoting Jennings v. State, 782 So. 2d 853, 863 n.9 (Fla. 2001))); see
Wood v. State, 209 So. 3d 1217, 1229 (Fla. 2017) (“[T]he CCP aggravating factor
is ‘one of the most serious aggravators set out in the statutory scheme.’ ” (quoting
Silvia v. State, 60 So. 3d 959, 974 (Fla. 2011))); id. at 1233-34; Mahn v. State, 714
So. 2d 391, 398-99 (Fla. 1998).

       4. The aggravating factors were “1) Spencer was previously convicted of a
violent felony, based upon his contemporaneous convictions for aggravated
assault, aggravated battery, and attempted second-degree murder; and 2) the
murder was especially heinous, atrocious, or cruel (HAC).” Spencer, 691 So. 2d at
1063 (citing § 921.141(5)(b), (h), Fla. Stat. (1993)). The mitigating circumstances
were “1) the murder was committed while Spencer was under the influence of
extreme mental or emotional disturbance; 2) Spencer’s capacity to appreciate the
criminality of his conduct or to conform his conduct to the requirements of law
was substantially impaired; and 3) the existence of a number of nonstatutory
mitigating factors in Spencer’s background, including drug and alcohol
abuse, paranoid personality disorder, sexual abuse by his father, honorable military
record, good employment record, and ability to function in a structured
environment that does not contain women.” Id. (citing § 921.141(6)(b), (f), Fla.
Stat. (1993)).


                                        -6-
         Ironically, if this Court had reversed for a new penalty phase rather than

remanding the case for “reconsideration” of the aggravation and mitigation by the

trial court, Spencer might be entitled to Hurst relief. By the time the case came

back to this Court after a new penalty phase (assuming the jury’s recommendation

was nonunanimous), Spencer would have likely been entitled to a new penalty

phase pursuant to Hurst under Mosley v. State, 209 So. 3d 1248, 1283 (Fla. 2016).5

         Spencer’s case involves the quintessential Hurst error—a defendant being

sentenced to death without trial by jury, as guaranteed by the United States and

Florida Constitutions. For these reasons, I would grant Spencer a new penalty

phase.

         Accordingly, I dissent.

An Appeal from the Circuit Court in and for Orange County,
     A. James Craner, Judge - Case No. 481992CF000473000AOX

Maria E. DeLiberato, Interim Capital Collateral Regional Counsel, Julissa R.
Fontán and Chelsea R. Shirley, Assistant Capital Collateral Regional Counsel,
Middle Region, Temple Terrace, Florida,

         for Appellant

Pamela Jo Bondi, Attorney General, Tallahassee, Florida, and Scott A. Browne,
Senior Assistant Attorney General, Tampa, Florida,

      5. For example, James Card committed the crimes for which he was
sentenced to death in 1981 and was originally sentenced to death in 1984—years
before Spencer. See Card v. State, 803 So. 2d 613, 617 (Fla. 2001). However,
because this Court granted Card a resentencing, his sentence of death did not
become final until after Ring v. Arizona, 536 U.S. 584 (2002), and he was granted
Hurst relief. Card v. Jones, 219 So. 3d 47 (Fla. 2017).

                                           -7-
for Appellee




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