       Third District Court of Appeal
                               State of Florida

                        Opinion filed November 23, 2016.
         Not final until disposition of timely filed motion for rehearing.

                               ________________

                               No. 3D16-1174
                          Lower Tribunal No. 12-8535
                             ________________


                            The State of Florida,
                                    Petitioner,

                                        vs.

                                Karon Gaiter,
                                   Respondent.


     On Petition for Writ of Certiorari to the Circuit Court for Miami-Dade
County, Milton Hirsch, Judge.

      Pamela Jo Bondi, Attorney General, and Timothy A. Freeland, Assistant
Attorney General, and Carol M. Dittmar (Tampa), Senior Assistant Attorney
General, for petitioner.

     Carlos J. Martinez, Public Defender, and Andrew Stanton, Assistant Public
Defender, for respondent.


Before ROTHENBERG, LOGUE, and SCALES, JJ.

      LOGUE, J.
      The State of Florida filed a petition for a writ of certiorari to review a

pretrial decision declaring Florida’s new death penalty statute, § 921.141(1),

Florida Statutes (2016), unconstitutional. We have jurisdiction.1 After the petition

was filed, the Florida Supreme Court held the statute was rendered unconstitutional

because it failed to require a unanimous jury recommendation of death. In doing

so, the Court explained, “[a]lthough the United States Supreme Court has not ruled

on whether unanimity is required in the jury’s advisory verdict in capital cases, the

foundational precept of the Eighth Amendment calls for unanimity in any death

recommendation that results in a sentence of death.” Hurst v. State, No. SC12-

1947, 2016 WL 6036978, at *15 (Fla. Oct. 14, 2016); See Perry v. State, No.

SC16-547, 2016 WL 6036982, at *8 (Fla. Oct. 14, 2016) (“we resolve any

ambiguity in the Act consistent with our decision in Hurst”).

      Certiorari denied.




      1  See, e.g., State v. Pettis, 520 So. 2d 250, 253 (Fla. 1988) (noting that the
filing of a petition for writ of certiorari is an apt remedy where the application of
double jeopardy would prevent the State from obtaining review of an interlocutory
trial court order that departed from the essential requirements of the law and
frustrated the proper prosecution of a crime).


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