          Supreme Court of Florida
                                 _____________

                                 No. SC14-1967
                                 _____________

                    LANCELOT URILEY ARMSTRONG,
                              Appellant,

                                        vs.

                             STATE OF FLORIDA,
                                  Appellee.

                                  ____________

                                  No. SC15-767
                                  ____________

                    LANCELOT URILEY ARMSTRONG,
                              Petitioner,

                                        vs.

                             JULIE L. JONES, etc.,
                                 Respondent.

                                [January 19, 2017]

PER CURIAM.

      Lancelot Uriley Armstrong appeals an order of the circuit court denying his

motion to vacate his 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 following reasons, we

vacate Armstrong’s sentence and remand for a new penalty phase consistent with

Hurst v. State, 202 So. 3d 40 (Fla. 2016).

      Armstrong was convicted of the February 17, 1990, first-degree murder of

Deputy John Greeney, attempted murder of Deputy Robert Sallustio, and armed

robbery. The jury recommended a sentence of death by a vote of nine to three,

which this Court affirmed. Armstrong v. State (Armstrong I), 642 So. 2d 730 (Fla.

1994).

      On appeal from the denial of postconviction relief, this Court vacated

Armstrong’s death sentence and remanded for a new penalty phase after

concluding that one of his prior violent felony aggravators had since been

invalidated. Armstrong v. State (Armstrong II), 862 So. 2d 705, 715 (Fla. 2003).

After the second penalty phase, the jury again recommended the death sentence by

a vote of nine to three. On his second direct appeal, this Court affirmed the

sentence of death. Armstrong v. State (Armstrong III), 73 So. 3d 155, 161 (Fla.

2011).

      On May 29, 2013, Armstrong filed a motion to vacate his sentence pursuant

to Florida Rule of Criminal Procedure 3.851, raising ten claims. The circuit court

denied relief on each of Armstrong’s claims. Armstrong now appeals and also

petitions for a writ of habeas corpus.


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      Because Armstrong was condemned by a vote of nine to three, we find that

Armstrong’s sentence is a result of a Hurst v. Florida, 136 S. Ct. 616 (2016), error.

We therefore must consider whether the error was harmless beyond a reasonable

doubt. See Hurst, 202 So. 3d at 67.

      The harmless error test, as set forth in Chapman[ v. California, 386
      U.S. 18 (1967),] and progeny, places the burden on the state, as the
      beneficiary of the error, to prove beyond a reasonable doubt that the
      error complained of did not contribute to the verdict or, alternatively
      stated, that there is no reasonable possibility that the error contributed
      to the conviction.
Id. at 68 (quoting State v. DiGuilio, 491 So. 2d 1129, 1138 (Fla. 1986)).

      The jury in this case recommended death by a vote of nine to three. While

the aggravators are such that no reasonable juror would not have found their

existence,1 we cannot determine that the jury unanimously found that the

aggravators outweighed the mitigation. We can only determine that the jury did

not unanimously recommend a sentence of death.

      Because we cannot make these determinations, we cannot say that there is

no possibility that the error did not contribute to the sentence. We therefore



       1. The trial court found the following aggravators in this case: (1)
Armstrong was convicted of another capital felony or of a felony involving the use
or threat of violence to the person; (2) the capital felony was committed while
Armstrong was engaged or was an accomplice in the commission of or an attempt
to commit the crime of robbery; and (3) the victim in this capital felony was a law
enforcement officer engaged in the performance of his duties. Armstrong, 73 So.
3d at 165.


                                         -3-
determine that the error in Armstrong’s sentencing was not harmless beyond a

reasonable doubt. Accordingly, we reverse the postconviction court’s order and

remand for a new penalty phase. See Hurst, 202 So. 3d at 69.

      It is so ordered.

LABARGA, C.J., and PARIENTE, LEWIS, and QUINCE, JJ., concur.
PERRY, Senior Justice, concurs in part and dissents in part with an opinion.
CANADY and POLSTON, JJ., dissent.

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

PERRY, Senior Justice, concurring in part and dissenting in part.

      I agree with the majority that the Hurst v. Florida, 136 S. Ct. 616 (2016),

error in this case is not harmless beyond a reasonable doubt. However, as I

expressed in Hurst v. State, 202 So. 3d 40, 75 (Fla. 2016) (Perry, J., concurring in

part and dissenting in part), “[t]here is no compelling reason for this Court not to

apply the plain language of section 775.082(2), Florida Statutes.” I therefore

dissent to the majority’s decision to remand for a new penalty phase and would

instead remand for the imposition of a life sentence.

Two Cases:

An Appeal from the Circuit Court in and for Broward County,
     Michael L. Gates, Judge - Case No. 061990CF005417B88810
And an Original Proceeding – Habeas Corpus




                                         -4-
Neal Andre Dupree, Capital Collateral Regional Counsel – Southern Region,
Nicole M. Noel, Assistant Capital Collateral Regional Counsel – Southern Region,
and Jason Jay Kruszka, Staff Attorney, Capital Collateral Regional Counsel –
Southern Region, Fort Lauderdale, Florida,

      for Appellant/Petitioner

Pamela Jo Bondi, Attorney General, Tallahassee, Florida; and Leslie T. Campbell,
Assistant Attorney General, West Palm Beach, Florida,

      for Appellee/Respondent




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