          Supreme Court of Florida
                                  ____________

                                  No. SC15-1256
                                  _____________

                            WILLIAM M. KOPSHO,
                                 Appellant,

                                         vs.

                             STATE OF FLORIDA,
                                   Appellee.
                                _____________

                                  No. SC15-1762
                                  _____________

                            WILLIAM M. KOPSHO,
                                 Petitioner,

                                         vs.

                              JULIE L. JONES, etc.,
                                  Respondent.

                                [January 19, 2017]

PER CURIAM.

      William Kopsho appeals an order of the Fifth Judicial Circuit Court denying

his motion to vacate his conviction of first-degree murder and 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 Kopsho’s sentence and remand for a new

penalty phase. See Hurst v. State, 202 So. 3d 40, 69 (Fla. 2016).

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

appeal. See Kopsho v. State, 84 So. 3d 204, 209-10 (Fla. 2012). After the penalty

phase, the jury voted ten to two to impose a death sentence, and the trial court

sentenced Kopsho to death. Id. at 210. On direct appeal in 2012, this Court

affirmed Kopsho’s conviction and sentence. Id. at 211.

        Kopsho filed his postconviction motion to vacate the judgment of conviction

and sentence on November 19, 2014. After a case management conference held on

March 9, 2015, the circuit court determined that no evidentiary hearing was

warranted and entered an order summarily denying Kopsho’s initial postconviction

motion on March 23, 2015.

        While Kopsho’s appeal from the summary denial of his motion for

postconviction relief was pending, the United States Supreme Court issued its

decision in Hurst v. Florida, 136 S. Ct. 616 (2016), holding, in short, “that

Florida’s capital sentencing scheme [is] unconstitutional to the extent that it fail[s]

to require the jury, rather than the judge, to find the facts necessary to impose the

death sentence.” Hurst, 202 So. 3d at 43-44 (citing Hurst v. Florida, 136 S. Ct. at

619).




                                          -2-
      Because Kopsho was condemned to death by a vote of ten to two, we find

that Kopsho’s sentence is the result of a Hurst v. Florida 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 ten to two. While

three of the aggravators in this case 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.




       1. The trial court found the following aggravators in this case: (1) that at the
time of the murder Kopsho was under a sentence of imprisonment or on felony
probation; (2) that Kopsho had committed a prior violent felony; (3) that the
murder was committed during an armed kidnapping; and (4) that the murder was
cold, calculated, and premeditated. Kopsho, 84 So. 3d at 210. The evidence
presented at trial included Kopsho’s confession that he planned to kill Lynne once
she told him that she had slept with her former supervisor but that he had to stay
calm until he had the opportunity. Id. at 208. Kopsho repeatedly referred to the
crime as premeditated in his multiple confessions. Id. at 209-210.


                                         -3-
      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

determine that the error in Kopsho’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.




                                         -4-
Two Cases:

An Appeal from the Circuit Court in and for Marion County,
     David Brent Eddy, Judge - Case No. 422000CF003762CFAXXX
And an Original Proceeding – Habeas Corpus

James Vincent Viggiano, Jr., Capital Collateral Regional Counsel – Middle
Region, Reuben Andrew Neff, Maria Christine Perinetti, Raheela Ahmed, and
Nicholas Arthur Whittle, Assistant Capital Collateral Regional Counsel – Middle
Region, Tampa, Florida,

      for Appellant/Petitioner

Pamela Jo Bondi, Attorney General, Tallahassee, Florida; and Stacey E. Kircher,
Assistant Attorney General, Daytona Beach, Florida,

      for Appellee/Respondent




                                      -5-
