         IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                              FIFTH DISTRICT

                                                    NOT FINAL UNTIL TIME EXPIRES TO
                                                    FILE MOTION FOR REHEARING AND
                                                    DISPOSITION THEREOF IF FILED


STATE OF FLORIDA,

              Petitioner,

 v.                                                        Case No. 5D16-4292

JOHAN QUINONES,

              Respondent.

________________________________/

Opinion filed January 24, 2017

Petition for Writ of Prohibition,
Alan Apte, Respondent Judge.

Pamela Jo Bondi, Attorney General,
Tallahassee, and Marilyn Muir Beccue,
Assistant Attorney General, Tampa, for
Petitioner.

J. Edwin Mills and Frank J. Bankowitz,
Orlando, for Respondent.

PER CURIAM.

       We grant Petitioner’s alternative application for a writ of certiorari to quash the trial

court's December 14, 2016, order granting Respondent’s motion to strike the State's

death penalty notice, filed in Orange County case number 2014-CF-008535. Although the

Florida Supreme Court held in Hurst v. State, 202 So. 3d 40, 43 (Fla. 2016), that the

amended statutory death penalty scheme is constitutionally infirm due to the lack of a

requirement that the jury’s recommendation be unanimous, we agree with Petitioner that
the trial court should have severed the offending component of the statute. In reaching

this conclusion, we manifest our agreement with Petitioner’s succinct argument:

             [S]ubsection (2)(c) can be severed from § 921.141, Florida
             Statutes, leaving intact the legislative intent of providing a
             constitutional procedure for imposition of the death penalty in
             appropriate cases.         Absent the specific language of
             subsection (2)(c), the statute requires the jury to make a
             recommendation for life or death. Pursuant to the judicial
             obligation to construe the statute in a constitutional manner,
             trial judges should ensure that all jury findings issued in the
             application of the death penalty are unanimous. This result is
             consistent with the Florida Supreme Court's determination
             that the statute's jury findings provisions as to the existence
             and sufficiency of the aggravating factors and that the
             aggravating factors outweigh the mitigating circumstances
             must be construed in a constitutional manner (requiring
             unanimity) so as to preserve the statute's viability. The
             absence of a legislative mandate on the nature of the jury vote
             can be easily cured through accurate jury instructions and
             simple interrogatories. It does not require any substantive re-
             writing of the law.

                     Furthermore, an unconstitutional provision of a statute
             can and should be severed from the remainder when the taint
             of the illegal provision has not infected the entire enactment.
             Schmitt v. State, 590 So. 2d 404, 414 (Fla. 1991). In this case,
             the provision declared unconstitutional does not taint the
             remainder of § 921.141(2) such that the entire statute must
             fail.


      In our view, this statute presents a classic case where severance is appropriate

under the four-part test adopted by the Florida Supreme Court in Cramp v. Board of Public

Instruction of Orange County, 137 So. 2d 828, 830 (Fla. 1962). First, the unconstitutional

provisions can be separated from the valid provisions. Second, the legislative purpose of

preserving Florida’s death penalty can be accomplished without the offending provisions.

Third, the “good and the bad” features are not so inseparable that the legislature would

not have passed the good without the bad. Finally, a complete act remains intact without



                                            2
the offending provisions. Because the requirement for a unanimous jury verdict is derived

from our constitution, the constitution itself provides the missing element of a completed

procedure for determining when a death sentence may be imposed.

      We certify the following question to the Florida Supreme Court as one of great

public importance:

             CAN AND SHOULD SUBSECTION 921.141(2), FLORIDA
             STATUTES, BE STRICKEN SO THAT THE REMAINING
             PORTIONS OF THE STATUTE ARE EFFECTUATED
             CONSISTENT WITH THE INTENT OF THE LEGISLATURE
             AND   THE   UNITED    STATES    AND   FLORIDA
             CONSTITUTIONS?

      PETITION GRANTED; ORDER QUASHED; QUESTION CERTIFIED.



ORFINGER, TORPY, and WALLIS, JJ., concur.




                                            3
