          Supreme Court of Florida

                                ______________

                                 No. SC15-1884
                                ______________


                              LOUIS B. GASKIN,
                                 Appellant,

                                       vs.

                            STATE OF FLORIDA,
                                 Appellee.

                               [January 19, 2017]




PER CURIAM.

      This case is before the Court on appeal from an order denying appellant

Louis B. Gaskin’s motion to vacate a judgment for two convictions of first-degree

murder and two sentences of death under Florida Rule of Criminal Procedure

3.851. Because the order concerns postconviction relief from two capital

convictions for which two sentences of death were imposed, this Court has
jurisdiction of the appeal under article V, section 3(b)(1), Florida Constitution. For

the following reasons, we affirm Gaskin’s convictions and sentences.

      The facts of this case were presented in this Court’s opinion on direct

appeal. Gaskin v. State, 591 So. 2d 917 (Fla. 1991). In 1989, Gaskin was

convicted of two counts of first-degree murder (premeditated and felony murder)

for the death of Robert Sturmfels, two counts of first-degree murder (premeditated

and felony murder) in the death of Georgette Sturmfels, one count of armed

robbery of the Sturmfels’ home, one count of burglary of the Sturmfels’ home, one

count of attempted first-degree murder of Joseph Rector, one count of armed

robbery of Joseph and Mary Rector, and one count of burglary of the Rectors’

home. Id. at 918. In 1990, after the penalty phase, the jury recommended two

death sentences for both murders by a vote of eight to four. Id. at 919. The trial

court sentenced Gaskin to death. Id. In 1991, this Court affirmed Gaskin’s

premeditated murder convictions and two death sentences, reversed the two felony

murder convictions that were duplicative of the premeditated murder convictions,

and remanded to the trial court for proceedings consistent with its decision. Id. at

922. In 1993, Gaskin’s sentences became final when the United States Supreme

Court denied certiorari review. Gaskin v. State, 510 U.S. 925 (1993). In 2002, this

Court affirmed the lower court’s denial of Gaskin’s initial motion for

postconviction relief. Gaskin v. State, 822 So. 2d 1243 (Fla. 2002). In 2014,


                                        -2-
pursuant to this Court’s 1991 directive, the lower court vacated one felony murder

conviction for each victim. In 2015, Gaskin filed his first successive motion to

vacate the judgment of conviction, challenging the premeditated murder

convictions and death sentences, and alleging that the jury’s use of both

premeditated murder and felony murder as aggravating circumstances amounted to

improper doubling of aggravators. The postconviction court summarily denied

Gaskin’s claims. Gaskin appealed to this Court, arguing that the postconviction

court erred in summarily denying his claim that his convictions should be vacated

because the jury considered two vacated convictions to recommend the death

sentences. Gaskin also argues that he is entitled to relief in light of the United

States Supreme Court’s decision Hurst v. Florida, 136 S. Ct. 616 (2016). For the

reasons below, we affirm the denial of postconviction relief.

                                 Standard of Review

      A successive rule 3.851 motion may be denied without an evidentiary

hearing if the records of the case conclusively show that the movant is not entitled

to relief. Reed v. State, 116 So. 3d 260, 264 (2013). This Court reviews the circuit

court’s decision to summarily deny a successive rule 3.851 motion de novo,

accepting the movant’s factual allegations as true to the extent that they are not

refuted by the record, and affirming the ruling if the record conclusively shows that

the movant is not entitled to relief. Id.


                                            -3-
                                           Merits

      Gaskin’s claim of improper doubling is untimely and procedurally barred

because the issue could have and should have been raised on direct appeal.

      In general, a postconviction movant must file for relief “within 1 year after

[the movant’s] judgment and sentence become final.” Fla. R. Crim. P. 3.851(d)(1).

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

of certiorari by the United States Supreme Court, if filed.” Fla. R. Crim. P.

3.851(d)(1)(B). Gaskin argues that his judgment became final when the circuit

court issued the corrected judgment in 2014. This is contrary to rule 3.851:

Gaskin’s sentence became final in 1993, when the United States Supreme Court

denied certiorari review. Gaskin, 510 U.S. 936; see State v. Johnson, 122 So. 3d

856 (Fla. 2013) (Johnson’s sentence became final in 2000, when the United States

Supreme Court denied certiorari review).

      Additionally, Gaskin’s claim is procedurally barred because Gaskin had the

opportunity to challenge not only his duplicative convictions on direct appeal but

to challenge his sentences on the basis that the jury erroneously considered the

doubled convictions in recommending two death sentences. See Dennis v. State,

109 So. 3d 680, 698 (Fla. 2012) (holding that claims were procedurally barred

because the movant could have raised them on direct appeal).




                                        -4-
      Finally, Gaskin’s argues that he is entitled to relief in light of Hurst v.

Florida. Because Gaskin’s sentence became final in 1993, Gaskin is not entitled to

relief under Hurst v. Florida. See Asay v. State, No. SC16-223, 2016 WL 7406538

at *13 (Fla. Dec. 22, 2016) (holding that Hurst is not retroactive to cases that

became final before the United States Supreme Court decided Ring v. Arizona, 536

U.S. 584 (2002)). Accordingly, we affirm the circuit court’s order summarily

denying Gaskin’s successive postconviction motion.

      It is so ordered.

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

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

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

      While I agree with the majority’s conclusion that Gaskin’s claim of

improper doubling is untimely and procedurally barred, I write separately to

express my disagreement with denying Gaskin relief under Hurst v. Florida1 and

Hurst.2 As I stated in my concurring in part and dissenting in part opinion in



      1. Hurst v. Florida (Hurst v. Florida), 136 S. Ct. 616 (2016).
      2. Hurst v. State (Hurst), 202 So. 3d 40 (Fla. 2016).


                                         -5-
Asay,3 fundamental fairness concerns emanating from the constitutional rights at

stake require us to hold Hurst fully retroactive to all death sentences imposed under

Florida’s prior, unconstitutional capital sentencing scheme. Asay, 2016 WL

7406538 (Fla. Dec. 22, 2016) (Pariente, J., concurring in part and dissenting in

part); see Hurst v. Florida, 136 S. Ct. at 622 (holding Florida’s capital sentencing

scheme unconstitutional). Thus, I would hold that Hurst applies retroactively to

Gaskin. Further determining that the Hurst error in Gaskin’s sentence was not

harmless beyond a reasonable doubt, I would grant Gaskin a new penalty phase.

      Short of holding Hurst fully retroactive, I would at least apply Hurst to

Gaskin because he, through his attorneys, challenged the constitutionality of

Florida’s capital sentencing statute at trial in 1990 and, again, on direct appeal in

1991. This Court summarily rejected Gaskin’s claim on direct appeal, stating:

“We also reject without discussion Gaskin’s multiple assertions regarding the

constitutionality of the capital-sentencing statute as each of his arguments has

previously been decided adversely to his position.” Gaskin v. State, 591 So. 2d

917, 920 (Fla. 1991). Although our opinion did not detail Gaskin’s constitutional

challenges, the record on appeal reveals that Gaskin argued that “section

921.141 . . . was unconstitutional on its face” for the reasons espoused by the




      3. Asay, 2016 WL 7406538 (Fla. Dec. 22, 2016).


                                         -6-
United States Supreme Court in Ring4 and Hurst v. Florida and then further

explained by this Court in Hurst:

             [B]efore a sentence of death may be considered by the trial
      court in Florida, the jury must find the existence of the aggravating
      factors proven beyond a reasonable doubt, that the aggravating factors
      are sufficient to impose death, and that the aggravating factors
      outweigh the mitigating circumstances. These same requirements
      existed in Florida law when Hurst was sentenced in 2012—although
      they were consigned to the trial judge to make.
             We also conclude that, just as elements of a crime must be
      found unanimously by a Florida jury, all these findings necessary for
      the jury to essentially convict a defendant of capital murder—thus
      allowing imposition of the death penalty—are also elements that must
      be found unanimously by the jury. Thus, we hold that in addition to
      unanimously finding the existence of any aggravating factor, the jury
      must also unanimously find that the aggravating factors are sufficient
      for the imposition of death and unanimously find that the aggravating
      factors outweigh the mitigation before a sentence of death may be
      considered by the judge.

Hurst, 202 So. 3d at 53-54 (footnotes omitted).

      Amid a myriad of arguments as to how Florida’s capital sentencing scheme

violated the fundamental rights of defendants facing the death penalty in Florida,

Gaskin specifically argued that the statute “does not require a sentencing

recommendation by a unanimous jury or a substantial majority of the jury and thus

results in the arbitrary and unreliable application of the death sentence and denies




      4. Ring v. Arizona, 536 U.S. 584 (2002).


                                        -7-
the right to a jury and to due process of law.”5 Among Gaskin’s several motions,

filed through counsel,6 disputing the validity of Florida’s capital sentencing

scheme was a “Motion for Use of Special Verdict Form for the Unanimous Jury

Determination of Statutory Aggravating Circumstances,” citing among other

constitutional bases the Sixth Amendment to the United States Constitution and

article I, section 22, of the Florida Constitution. State v. Gaskin, No. 90-01/07/17

(Fla. May 10, 1990). Gaskin also filed a separate motion to declare

unconstitutional section 921.141, Florida Statutes, broadly arguing many of the

deficiencies in the statute that have now been recognized as constitutionally

impermissible, such as jury overrides and the bare majority jury recommendation.7




       5. Gaskin v. State, No. SC76-326, Initial Br. of Appellant (Fla. Mar. 5,
1991), at 70; accord Gaskin v. State, Nos. 90-01; 90-07; 90-17, Motion to Preclude
Imposition of the Death Penalty (Flagler Cty. Cir. Ct. Fla. June 5, 1990), at 7
(“Section 921.141 . . . is unconstitutional on its face because the jury
recommendation need not be unanimous, thereby depriving the Defendant to the
rights to Due Process and to a unanimous jury verdict, in violation of Article I,
Section 9, 16 and 22 of the Florida Constitution and the Fifth, Sixth and Fourteenth
Amendments to the United States Constitution.”).
       6. The constitutional arguments made on behalf of Gaskin were a product of
the advocacy of his lawyer Christopher S. Quarles, an assistant public defender and
a zealous advocate for his death penalty clients for decades.
       7. Gaskin v. State, Motion to Preclude Imposition of the Death Penalty,
Nos. 90-01; 90-07; 90-17 (Flagler Cty. Cir. Ct. Fla. June 5, 1990), at 4 (“Section
921.141 . . . is unconstitutional on its face because a jury recommendation of life in
prison need not be followed by the trial court judge.”); id. at 5 (“Section 921.141 . .
. is unconstitutional on its face because it permits the trial judge to overrule a jury

                                         -8-
Most closely resembling Hurst v. Florida and Hurst, Gaskin argued that section

921.141 is facially unconstitutional because the “jury recommendation need not be

unanimous,” nothing “require[s] the court to instruct the jury that to return a

recommendation of death, the jury must be convinced beyond every reasonable

doubt that the aggravating circumstances outweigh the mitigating circumstances,”

“the jury is not required to list the specific aggravating circumstances they have

found beyond a reasonable doubt when they recommend the death penalty,” and “it

permits the trial judge to consider aggravating circumstances in imposing the death

sentence that the advisory jury may not have considered or that the advisory jury

may have rejected.” Id. at 7-9.8 Even without a finding a full retroactivity, under

Justice Lewis’s concurring in result opinion in Asay, Hurst would apply

retroactively to Gaskin under James v. State, 615 So. 2d 668 (Fla. 1993), because

Gaskin asserted, presented, and preserved a challenge to the lack of jury

factfinding in Florida’s capital sentencing procedure. Asay, 2016 WL 7406538, at

*20 (Lewis, J., concurring in result).



life recommendation, contrary to the clear expression of the conscience of the
community.” (citing McCaskill v. State, 344 So. 2d 1276, 1280 (Fla. 1977)).
       8. See Gaskin v. State, Motion to Prohibit Any Reference to the Advisory
Role of the Jury, Nos. 90-01; 90-07; 90-17 (Flagler Cty. Cir. Ct. Fla. June 5, 1990),
at 2 (“Reference to the advisory role of the jury would deny the Defendant due
process of law and a fair trial . . . .”). See generally Hurst v. Florida, 136 S. Ct.
616; Ring, 536 U.S. 584.


                                         -9-
      Because I would apply Hurst to Gaskin’s case, I must now determine

whether the Hurst error in Gaskin’s penalty phase was harmless beyond a

reasonable doubt. On remand from the United States Supreme Court, this Court

determined that Hurst error is capable of harmless error review. Hurst, 202 So. 3d

at 67. In Hurst, we established the test for reviewing these errors for harmlessness:

              Where the error concerns sentencing, the error is harmless only
      if there is no reasonable possibility that the error contributed to the
      sentence. See, e.g., Zack v. State, 753 So. 2d 9, 20 (Fla. 2000).
      Although the harmless error test applies to both constitutional errors
      and errors not based on constitutional grounds, “the harmless error
      test is to be rigorously applied,” [State v.] DiGuilio, 491 So. 2d
      [1129,] 1137 [Fla. 1986], and the State bears an extremely heavy
      burden in cases involving constitutional error. Therefore, in the
      context of a Hurst v. Florida error, the burden is on the State, as the
      beneficiary of the error, to prove beyond a reasonable doubt that the
      jury’s failure to unanimously find all the facts necessary for
      imposition of the death penalty did not contribute to Hurst’s death
      sentence in this case. We reiterate:

             The test is not a sufficiency-of-the-evidence, a correct
             result, a not clearly wrong, a substantial evidence, a more
             probable than not, a clear and convincing, or even an
             overwhelming evidence test. Harmless error is not a
             device for the appellate court to substitute itself for the
             trier-of-fact by simply weighing the evidence. The focus
             is on the effect of the error on the trier-of-fact.

      DiGuilio, 491 So. 2d at 1139. “The question is whether there is a
      reasonable possibility that the error affected the [sentence].” Id.

202 So. 3d at 68 (last alteration in original). As applied to the right to a jury trial

with regard to the facts necessary to impose the death penalty, it must be clear

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

                                          - 10 -
there were sufficient aggravating factors that outweighed the mitigating

circumstances.

      Gaskin’s sentences became final in 1993. Majority op. at 2. The penalty

phase jury voted eight to four to recommend a sentence of death for both murders.

Majority op. at 2. So not only are we unable to determine beyond a reasonable

doubt that the jury unanimously made the requisite findings to impose death as

required by Hurst, but most significantly in Gaskin’s case, the jury may have relied

on invalid aggravating factors to reach its mere eight to four recommendation for

death. See majority op. at 2-3. As the majority explained, this Court reversed and

vacated Gaskin’s sentences of felony murder, which the sentencing jury likely

considered in its weighing process. Majority op. at 2-3. Thus, for the reasons

stated above and under the test set forth by this Court in Hurst for determining

whether Hurst errors are harmless beyond a reasonable doubt, I would conclude

that any error in Gaskin’s nonunanimous sentencing recommendation was not

harmless beyond a reasonable doubt and Gaskin should, therefore, receive a new

penalty phase under Hurst.

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

      I concur in the majority’s conclusion that Gaskin’s claim of improper

doubling is untimely and procedurally barred. See majority op. at 4. However, I




                                       - 11 -
respectfully dissent from the majority’s decision not to apply Hurst v. Florida, 136

S. Ct. 616 (2016), retroactively.

      I dissent because Hurst v. Florida does apply retroactively to Gaskin’s case.

In his present appeal, Gaskin once again challenges the constitutionality of

Florida’s death penalty statute. The majority concluded that Gaskin was not

eligible for Hurst v. Florida relief because Gaskin’s sentences became final in

1993, before the United States Supreme Court decided Ring v. Arizona, 536 U.S.

584 (2002). See majority op. at 5.

      For the reasons I dissented in part in Asay, I cannot agree with the majority’s

decision to limit the retroactive effect of Hurst v. Florida to those cases that were

not final before Ring. See Asay v. State, No. SC16-223, 2016 WL 7406538 at *13

(Fla. Dec. 22, 2016) (Perry, J., dissenting). I would find that Hurst v. Florida

applies retroactively regardless of whether a sentence became final before or after

the Ring decision.

An Appeal from the Circuit Court in and for Volusia County,
     Joseph David Walsh, Judge - Case No. 641995CF034327XXXAES

James Vincent Viggiano, Jr., Capital Collateral Regional Counsel – Middle
Region, James Lawrence Driscoll, Jr., David Dixon Hendry, and Gregory W.
Brown, Assistant Capital Collateral Regional Counsel – Middle Region, Tampa,
Florida,

      for Appellant

Pamela Jo Bondi, Attorney General, Tallahassee, Florida; and Scott Andrew
Browne, Senior Assistant Attorney General, Tampa, Florida,

                                         - 12 -
for Appellee




               - 13 -
