          Supreme Court of Florida
                                   ____________

                                   No. SC18-810
                                   ____________

                            DUANE EUGENE OWEN,
                                  Appellant,

                                         vs.

                              STATE OF FLORIDA,
                                   Appellee.

                                   June 25, 2020

PER CURIAM.

      Duane Eugene Owen appeals an order of the circuit court denying his

successive motion to vacate his sentence of death under Florida Rule of Criminal

Procedure 3.851, relying on Hurst v. Florida, 136 S. Ct. 616 (2016); Hurst v. State,

202 So. 3d 40 (Fla. 2016), cert. denied, 137 S. Ct. 2161 (2017), receded from by

State v. Poole, 45 Fla. L. Weekly S41 (Fla. Jan. 23, 2020), clarified, 45 Fla. L.

Weekly S121 (Fla. Apr. 2, 2020); and this Court’s Hurst-related precedent

regarding death sentences that became final after June 24, 2002. We have

jurisdiction. See art. V, § 3(b)(1), Fla. Const. Applying McKinney v. Arizona, 140
S. Ct. 702, 707-09 (2020), and State v. Poole, 45 Fla. L. Weekly S41, we affirm

Owen’s sentence of death.

                                 BACKGROUND

      In 1984, Owen forcibly entered a home in which fourteen-year-old Karen

Slattery was babysitting two young children, stabbed Slattery to death, and

sexually assaulted her. Owen v. State (Owen II), 862 So. 2d 687, 700 (Fla. 2003),

cert. denied, 543 U.S. 986 (2004). 1 Owen was sentenced to death after his jury

recommended this sentence by a vote of ten to two. Id. at 690.

      Owen has also been convicted of the first-degree murder of another victim,

Georgianna Worden, who was murdered five days after Slattery in a scenario

“substantially similar to [that] of the Slattery murder.” Id. at 691. Owen was

sentenced to death for Worden’s murder following his jury’s ten-to-two

recommendation for death. See Owen v. State, 596 So. 2d 985, 987 (Fla. 1992),

cert. denied, 506 U.S. 921 (1992). With respect to this murder, too, Owen has

sought relief under Hurst v. Florida and Hurst v. State. Owen v. State, 247 So. 3d

394, 395 (Fla. 2018). However, we have already held that Owen is not entitled to

Hurst relief from his sentence for the Worden murder because that sentence



       1. For the sexual offense, Owen was not convicted of sexual battery, but
attempted sexual battery. Owen II, 862 So. 2d at 690. Although there was clear
evidence of a sexual assault, it was not clear whether it occurred before or after
Slattery’s death. Id. at 699.


                                        -2-
became final before June 24, 2002, the cut-off date for such relief that was

established in Asay v. State, 210 So. 3d 1, 22 (Fla. 2016), and Mosley v. State, 209

So. 3d 1248, 1283 (Fla. 2016). See Owen, 247 So. 3d at 395.

      Even though Owen murdered Slattery five days before he murdered Worden,

his death sentence for the murder of Slattery is in a different posture with respect to

our Hurst-related precedent. The reason for this difference is that Owen’s original

conviction and sentence of death for Slattery’s murder was reversed and remanded

for a new trial, see Owen v. State (Owen I), 560 So. 2d. 207, 212 (Fla. 1990),

which delayed the finality date of his conviction and sentence for that murder.

Although Owen was convicted of the Slattery murder again and given the same

sentence, the new conviction and sentence for Slattery’s murder did not become

final until after June 24, 2002, more than a decade after Owen’s conviction and

sentence of death for Worden’s murder became final. See Owen II, 862 So. 2d at

700, cert. denied, 543 U.S. 986 (2004).

      With respect to the Slattery murder and the resulting sentence, which is at

issue in this case, Owen, whose DNA was found in semen recovered from

Slattery’s body, confessed to his crimes. Id. at 702. More specifically, Owen

admitted the following facts:

      Owen admitted to cutting a screen out of a window to gain access to
      the home where Slattery was babysitting. The first time he entered
      the home, he heard noises and observed Slattery fixing the hair of one
      of her charges. Owen left the home but subsequently returned.

                                          -3-
      Initially, when he returned, he had his socks on his hands, but
      immediately upon entering the house, he searched a closet in the home
      and found gloves, which he placed on his hands, returning his socks to
      his feet. He also retrieved a hammer from the same closet.
              According to Owen, he confronted Slattery near the phone as
      she was concluding a telephone conversation. He ordered her to
      return the phone to its cradle, and when she did not, he dropped his
      hammer, grabbed the phone from her hand, returned it to its base, and
      immediately began stabbing her. After Owen had stabbed Slattery, he
      checked on the children to ensure they had not awakened during the
      attack, and he then proceeded to lock the doors and turn off all the
      lights and the television. Owen then dragged Slattery by her feet into
      the bedroom, removed her clothes, and sexually assaulted her. He
      explained to the officer questioning him that he had only worn a pair
      of “short-shorts” into the house. After he sexually assaulted Slattery,
      Owen showered to wash the blood from his body, and then exited the
      house through a sliding glass door. He then returned to the home
      where he was staying and turned the clocks back [in that house] to
      read 9:00 p.m. According to Owen, he did this to provide an alibi
      based on time. He admitted that after he turned the clocks back, he
      purposely asked his roommate the time. Owen bragged to the officers
      about his plan to turn back the clocks, explaining that he “had to be
      thinking.”

Id. at 700.

      Along with first-degree murder, Owen was convicted of attempted sexual

battery and burglary at his retrial. Id. at 690. After this Court affirmed Owen’s

convictions and sentence of death on direct appeal, id., and the United States

Supreme Court denied certiorari, Owen v. Florida, 543 U.S. 986 (2004), this Court

affirmed the denial of Owen’s initial postconviction motion and denied his petition

for writ of habeas corpus. Owen v. State (Owen III), 986 So. 2d 534, 541 (Fla.

2008). The federal district court subsequently denied Owen’s federal habeas


                                        -4-
petition, the Eleventh Circuit Court of Appeals affirmed, and the Supreme Court

denied certiorari. See Owen v. Fla. Dep’t of Corr., 686 F.3d 1181, 1183 (11th Cir.

2012), cert. denied, 569 U.S. 960 (2013). In the successive postconviction motion

at issue in this appeal, Owen sought relief from his death sentence pursuant to the

Supreme Court’s decision in Hurst v. Florida and this Court’s decision on remand

in Hurst v. State. The circuit court denied relief, and Owen seeks reversal of that

ruling.

                                    ANALYSIS

      In Hurst v. Florida, the Supreme Court found Florida’s capital sentencing

scheme unconstitutional because it “required the judge alone to find the existence

of an aggravating circumstance.” 136 S. Ct. at 624. In so holding, the Supreme

Court overruled its prior precedent upholding Florida’s capital sentencing scheme

“to the extent [that precedent] allow[ed] a sentencing judge to find an aggravating

circumstance, independent of a jury’s factfinding, that is necessary for the

imposition of the death penalty.” Id. Then, in Hurst v. State, this Court held the

following:

      [B]efore the trial judge may consider imposing a sentence of death,
      the jury in a capital case must unanimously and expressly find all the
      aggravating factors that were proven beyond a reasonable doubt,
      unanimously find that the aggravating factors are sufficient to impose
      death, unanimously find that the aggravating factors outweigh the
      mitigating factors, and unanimously recommend a sentence of death.




                                        -5-
202 So. 3d at 57. We have since receded from this holding, “except to the extent it

requires a jury unanimously to find the existence of a statutory aggravating

circumstance beyond a reasonable doubt.” Poole, 45 Fla. L. Weekly at S48. The

Supreme Court’s recent decision in McKinney confirms that we correctly

interpreted Hurst v. Florida in Poole and supports our decision to recede from the

additional requirements imposed by Hurst v. State.2 McKinney, 140 S. Ct. at 7073

(“Under Ring [v. Arizona, 536 U.S. 584 (2002),] and Hurst [v. Florida], a jury

must find the aggravating circumstance that makes the defendant death eligible.

But importantly, in a capital sentencing proceeding just as in an ordinary

sentencing proceeding, a jury (as opposed to a judge) is not constitutionally

required to weigh the aggravating and mitigating circumstances or to make the

ultimate sentencing decision within the relevant sentencing range.”).

      Beyond the requirement that a jury unanimously find the existence of an

aggravating circumstance beyond a reasonable doubt, as explained in Poole, the




      2. The foundation underpinning Hurst v. State was an erroneous reading of
Hurst v. Florida as imposing a constitutional requirement for unanimous jury
“findings” on sentencing factors beyond the existence of at least one aggravating
circumstance. See Hurst v. State, 202 So. 3d at 44 (“[W]e hold that the Supreme
Court’s decision in Hurst v. Florida requires that all the critical findings necessary
before the trial court may consider imposing a sentence of death must be found
unanimously by the jury.”). McKinney confirms that our prior decision in Hurst v.
State was erroneously grounded on a fundamental misunderstanding of Hurst v.
Florida, as we held in Poole.


                                         -6-
holding of Hurst v. State is not supported by state or federal constitutional law or

the statutory law that was in effect before its issuance. Poole, 45 Fla. L. Weekly at

S43-48; accord McKinney, 140 S. Ct. at 707-8. In contrast, the requirement that a

jury, not the judge, find the existence of an aggravating circumstance is mandated

by the Supreme Court’s decision in Hurst v. Florida, 136 S. Ct. at 624, as a Sixth

Amendment requirement. McKinney, 140 S. Ct. at 707; Poole, 45 Fla. L. Weekly

at S44-47.

      The Sixth Amendment test required by Hurst v. Florida, 136 S. Ct. at 624,

and applied in Poole, 45 Fla. L. Weekly at S47-S48, is easily met in Owen’s case

because unanimous jury findings did support two of the aggravators in Owen’s

case (prior violent felony and in the course of a burglary) and would preclude a

finding of Hurst v. Florida error. See Hurst v. Florida, 136 S. Ct. at 624 (finding

that Florida’s sentencing scheme violated the Sixth Amendment because it

“required the judge alone to find the existence of an aggravating circumstance”);

Poole, 45 Fla. L. Weekly at S48. Specifically, the prior-violent-felony aggravator

was established by Owen’s convictions, after a jury trial, of the first-degree murder

and sexual battery of Worden. Owen III, 986 So. 2d at 553, 555; Owen, 596 So. 2d




                                         -7-
at 986-87 (Worden case).3 The “in the course of a burglary” aggravator was

established by the jury’s verdict of guilt as to that offense in this case. Owen II,

862 So. 2d at 690. In fact, Owen conceded the existence of both of these

aggravators at sentencing. Id. at 702.

                                   CONCLUSION

      Because Owen’s jury found that he committed first-degree murder and

because jury findings establish the existence of two statutory aggravators, he is

eligible for the death penalty under the law in effect at the time of his crime, and

there is no constitutional infirmity in his sentence under Hurst v. Florida or the

portion of the Hurst v. State holding that remains after our decision in Poole.

Accordingly, we affirm the order of the circuit court upholding the death sentence

imposed in this case.

      It is so ordered.

CANADY, C.J., and POLSTON, LAWSON, MUÑIZ, and COURIEL, JJ., concur.
LABARGA, J., recused.

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

An Appeal from the Circuit Court in and for Palm Beach County,
     Glenn D. Kelley, Judge - Case No 501984CF004014AXXXMB



       3. The trial court relied on additional prior violent felonies, against two
additional victims, to establish this aggravator as well. However, for the purpose
of our decision today, it is sufficient to note the Worden murder and sexual battery.


                                         -8-
Eric Pinkard, Capital Collateral Regional Counsel, and James L. Driscoll Jr.,
Assistant Capital Collateral Regional Counsel, Middle Region, Temple Terrace,
Florida,

      for Appellant

Ashley Moody, Attorney General, Tallahassee, Florida, and Celia A. Terenzio,
Assistant Attorney General, Palm Beach, Florida,

      for Appellee

Arthur I. Jacobs of Jacobs Scholz & Wyler, LLC, Fernandina Beach, Florida,

      for Amicus Curiae Florida Prosecuting Attorneys Association




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