          Supreme Court of Florida
                                  ____________

                                  No. SC16-1946
                                  ____________

                         PATRICK ALBERT EVANS,
                                Petitioner,

                                         vs.

                             STATE OF FLORIDA,
                                 Respondent.
                                ____________

                                  No. SC16-2133
                                  ____________

                                JUAN ROSARIO,
                                   Petitioner,

                                         vs.

                             STATE OF FLORIDA,
                                 Respondent.

                                [February 20, 2017]
PER CURIAM.

      This Court has for its consideration two petitions for writs of prohibition

filed in Evans v. State, No. SC16-1946, and Rosario v. State, No. SC16-2133. We

granted Rosario’s motion for consolidation and consolidated the two cases for

disposition purposes. As we explain below, we deny the petitions for writs of

prohibition.
      In Evans, the trial court determined that, in light of this Court’s decisions in

Hurst v. State (Hurst), 202 So. 3d 40 (Fla. 2016), and Perry v. State, 41 Fla. L.

Weekly S449 (Fla. Oct. 14, 2016), it would death qualify the jury in Evans’ first-

degree murder trial and, if Evans were convicted of first-degree murder, proceed to

the penalty phase, where it would instruct the jury consistent with this Court’s

decision in Hurst such that Evans could receive a death sentence if the jury

unanimously made the requisite findings of fact and unanimously recommended a

sentence of death.

      Specifically, the trial court’s order in Evans, quoting the transcript of a status

check proceeding, indicates the trial court would death qualify a jury and that the

jury would be instructed (and the verdict form would reflect) that there are four

determinations that the jury would have to find unanimously for the imposition of a

death sentence:

             I would have four questions on the verdict form.

            Number one, do you-all unanimously believe that this
      aggravating factor was proved beyond a reasonable doubt? . . .

            And then, number two, do you unanimously find that the
      aggravating circumstances are [sufficient]?

            Number three, do you [unanimously] find that the aggravating
      circumstances outweigh any mitigating circumstances?
             And then in number four, if you answered “yes” to all of those,
      do you [unanimously] find that death would be your verdict or would
      be the proper determination?



                                         -2-
            Of course, we would instruct them that just because they
      answered “yes, yes, yes” to the first three, it doesn’t mean they have
      to answer “yes” to four. . . .

              And as I said, we would death qualify the jury and let them
      know that that’s what the rules would be. And then if the defendant
      is, in fact, found guilty of first[-]degree murder, then we would
      proceed accordingly. I don’t think it would be all that hard to draft
      those instructions. I don’t think it would be all that hard to come up
      with a verdict form.

Evans now seeks a writ of prohibition in this Court to restrain the trial court from

proceeding as indicated in its order.

      By contrast, the trial court in Rosario initially determined that this Court’s

decision in Perry prohibits the State from seeking the death penalty in a pending

prosecution. The trial court ordered that Rosario’s case would proceed with a

mandatory life maximum penalty. However, the State challenged this order, and

the Fifth District granted the State’s petition for a writ of prohibition. Rosario now

requests that this Court issue a writ of prohibition restraining the trial court from

death qualifying a jury.

                                     ANALYSIS

      In Hurst, 202 So. 3d at 44, after the United States Supreme Court’s decision

in Hurst v. Florida, 136 S. Ct. 616 (2016), this Court delineated the factual findings

and recommendation a jury must unanimously make before a trial court may

impose a death sentence:




                                         -3-
      [T]he 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.
      . . . In capital cases in Florida, these specific findings required to be
      made by the jury include the existence of each aggravating factor that
      has been proven beyond a reasonable doubt, the finding that the
      aggravating factors are sufficient, and the finding that the aggravating
      factors outweigh the mitigating circumstances. We also hold . . . that
      in order for the trial court to impose a sentence of death, the jury’s
      recommended sentence of death must be unanimous.

      Thereafter, in Perry, 41 Fla. L. Weekly at S449, this Court addressed

“whether the newly enacted death penalty law, passed after the United States

Supreme Court held a portion of Florida’s capital sentencing scheme

unconstitutional in Hurst v. Florida[,] may be constitutionally applied to pending

prosecutions.” We summarized our holding in Perry as follows:

      Ultimately, we conclude that while most of the provisions of the Act
      can be construed constitutionally and could otherwise be validly
      applied to pending prosecutions, because the Act requires that only
      ten jurors, rather than all twelve, recommend a final sentence of death
      for death to be imposed, the Act is unconstitutional to that extent
      pursuant to Hurst. . . .
Id. at S451.

      As we explained in Perry, “[s]ection 3 of the Act defines the facts required

to be found by the jury for a sentence of death to be imposed.” Id. Specifically,

section 3 of the Act amends sections 921.141(2) and (3), Florida Statutes, to

include the following language:




                                        -4-
       (2) FINDINGS AND RECOMMENDED SENTENCE BY
THE JURY. This subsection applies only if the defendant has not
waived his or her right to a sentencing proceeding by a jury.
       (a) After hearing all of the evidence presented regarding
aggravating factors and mitigating circumstances, the jury shall
deliberate and determine if the state has proven, beyond a reasonable
doubt, the existence of at least one aggravating factor set forth in
subsection (6).
       (b) The jury shall return findings identifying each aggravating
factor found to exist. A finding that an aggravating factor exists must
be unanimous. If the jury:
       1. Does not unanimously find at least one aggravating factor,
the defendant is ineligible for a sentence of death.
       2. Unanimously finds at least one aggravating factor, the
defendant is eligible for a sentence of death and the jury shall make a
recommendation to the court as to whether the defendant shall be
sentenced to life imprisonment without the possibility of parole or to
death. The recommendation shall be based on a weighing of all of the
following:
       a. Whether sufficient aggravating factors exist.
       b. Whether aggravating factors exist which outweigh the
mitigating circumstances found to exist.
       c. Based on the considerations in sub-subparagraphs a. and b.,
whether the defendant should be sentenced to life imprisonment
without the possibility of parole or to death.
       (c) If at least 10 jurors determine that the defendant should be
sentenced to death, the jury’s recommendation to the court shall be a
sentence of death. If fewer than 10 jurors determine that the
defendant should be sentenced to death, the jury’s recommendation to
the court shall be a sentence of life imprisonment without the
possibility of parole.
        (3) IMPOSITION OF SENTENCE OF LIFE
IMPRISONMENT OR DEATH.—
       (a) If the jury has recommended a sentence of:
       1. Life imprisonment without the possibility of parole, the
court shall impose the recommended sentence.
       2. Death, the court, after considering each aggravating factor
found by the jury and all mitigating circumstances, may impose a
sentence of life imprisonment without the possibility of parole or a


                                 -5-
      sentence of death. The court may consider only an aggravating factor
      that was unanimously found to exist by the jury.

Ch. 2016-13, § 3, at 233-34, Laws of Fla.

      In Perry, 41 Fla. L. Weekly at S452, this Court explained that “[c]onsistent

with our decision in Hurst, we construe [this amended] section 921.141(2)(b)2. to

require the penalty phase jury to unanimously find beyond a reasonable doubt that

each aggravating factor exists, that sufficient aggravating factors exist to impose

death, and that they outweigh the mitigating circumstances found to exist.” This

Court in Perry, id. at S453, also concluded that the provision of the Act amending

section 921.141(2)(c) “is unconstitutional because it requires that only ten jurors

recommend death as opposed to the constitutionally required unanimous, twelve-

member jury.”

      Accordingly, pursuant to our holding in Perry, the revised statutory scheme

in chapter 2016-13, Laws of Florida, can be applied to pending prosecutions

because “most of the provisions of the Act can be construed constitutionally and

[can] otherwise be validly applied to pending prosecutions.” Id. at S451.

Importantly, however, the provision of the Act identified as problematic in Perry,

which amends section 921.141(2)(c),1 can only be constitutionally applied under




      1. To be clear, the provision identified as problematic in Perry provides the
following:


                                         -6-
our decisions in Hurst and Perry to pending prosecutions for a jury

recommendation of death if twelve jurors unanimously determine that a defendant

should be sentenced to death. Therefore, we deny Evans’ and Rosario’s petitions

for writs of prohibition.2 The trial courts in Evans and Rosario may proceed with

death qualifying juries.

      It is so ordered.




            If at least 10 jurors determine that the defendant should be
      sentenced to death, the jury’s recommendation to the court shall be a
      sentence of death. If fewer than 10 jurors determine that the
      defendant should be sentenced to death, the jury’s recommendation to
      the court shall be a sentence of life imprisonment without the
      possibility of parole.
§ 921.141(2)(c), Fla. Stat. (2016).

       2. It is unnecessary to address the State’s motion to toll speedy trial in
Rosario at this time because Rosario is the one who filed the petition for a writ of
prohibition in this Court. See Barker v. Wingo, 407 U.S. 514, 529 (1972) (“[I]f
delay is attributable to the defendant, then his waiver [of the right to speedy trial]
may be given effect under standard waiver doctrine, the demand rule aside.”);
Carroll v. State, 251 So. 2d 866, 871 (Fla. 1971) (“If [the accused] elects to
proceed through prohibition, an automatic stay is instituted once the rule has been
issued, thereby subjecting the accused to a tolling of time while his petition is
pending.”). We transfer the State’s motion to toll speedy trial to the trial court
upon issuance of this Court’s mandate. See State v. Jenkins, 389 So. 2d 971, 974
(Fla. 1980) (“The trial judge is in the best position to make certain under the
individual facts of the case that an extension of time will not deprive the defendant
of this constitutional right to a speedy trial.”).


                                         -7-
CANADY, POLSTON, and LAWSON, JJ., concur.
POLSTON, J., concurs with an opinion, in which CANADY and LAWSON, JJ.,
concur.
LABARGA, C.J., concurs in result with an opinion, in which LEWIS, J., concurs.
PARIENTE, J., concurs in part and dissents in part with an opinion, in which
QUINCE, J., concurs.

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

POLSTON, J., concurring.

      While I continue to believe that the Act is not unconstitutional under the

United States Supreme Court’s decision in Hurst v. Florida, see Perry, 41 Fla. L.

Weekly at S453 (Canady, J., dissenting), I agree with today’s decision that the Act

can be applied to pending prosecutions under the majority’s decision in Hurst with

a unanimous jury recommendation for a death sentence.

CANADY and LAWSON, JJ., concur.

LABARGA, C.J., concurring in result.

      I concur with the conclusion reached by the majority, but write separately to

highlight that my agreement is based upon a determination that the provision we

identified as problematic in Perry is severable from the remainder of the Act. The

judicial branch has an obligation to “uphold the constitutionality of legislative

enactments where it is possible to strike only the unconstitutional portions.” Ray




                                         -8-
v. Mortham, 742 So. 2d 1276, 1280 (Fla. 1999). However, we did not perform a

severability analysis in Perry.3 The longstanding severability test provides:

      When a part of a statute is declared unconstitutional the remainder of
      the act will be permitted to stand provided: (1) the unconstitutional
      provisions can be separated from the remaining valid provisions,
      (2) the legislative purpose expressed in the valid provisions can be
      accomplished independently of those which are void, (3) the good and
      the bad features are not so inseparable in substance that it can be said
      that the Legislature would have passed the one without the other and,
      (4) an act complete in itself remains after the invalid provisions are
      stricken.

Cramp v. Bd. of Pub. Instr., 137 So. 2d 828, 830 (Fla. 1962).

      Applying this criteria, I would conclude that the unconstitutional portion of

the Act can be separated from the rest, and a complete law remains in its absence.

Even after striking subsection 921.141(2)(c) as amended, the Act still requires a

jury to find the existence of aggravating circumstances, determine whether those

aggravating circumstances are sufficient to impose death, and weigh the




       3. I recognize that Perry contains what appear to be conflicting statements
as to whether the Act is invalid in whole or in part. Earlier in the decision, we
stated that “while most of the provisions of the Act can be construed
constitutionally and could otherwise be validly applied to pending prosecutions,
because the Act requires that only ten jurors, rather than all twelve, recommend a
final sentence of death for death to be imposed, the Act is unconstitutional to that
extent pursuant to Hurst.” 41 Fla. L. Weekly at S451 (emphasis added). However,
we later articulated a broader holding by stating “the Act’s 10-2 jury
recommendation requirement renders the Act unconstitutional.” Id. at S453
(emphasis added). My conclusion as to severability leads me to reconsider our
earlier determination that the Act “cannot be applied to pending prosecutions.” Id.


                                        -9-
aggravating circumstances against the mitigating circumstances that have been

found to exist. Moreover, the requirement that the jury issue a sentencing

recommendation remains intact in subsection 921.141(2)(b).

      Further, capital prosecutions are able to proceed in the absence of the

stricken subsection. Trial courts can, as the court in Evans indicated it would,

instruct juries that unless they unanimously find the critical facts, and unless the

recommendation for death is unanimous, the recommendation shall be for a

sentence of life imprisonment without the possibility of parole. With regard to this

conclusion, it is important to note that the jury does not read the statute; it only

receives instructions from the court and a recommendation form. If the jury is

instructed according to the law, and as required by Hurst, I believe there is no

substantial or relevant difference between the operation of the statute with the

offending subsection and the operation of the statute without it.

      With regard to the second prong of the Cramp test, the legislative purpose in

the constitutional portions of the Act—having a viable death penalty statute—can

be accomplished without language that provides a specific number of votes before

a jury may recommend a sentence of death. Lastly, and in the same vein, the

“good” and the “bad” provisions of the Act are not so inseparable that it can be

said the Legislature would not have enacted the chapter law without the invalid

subsection. It is fairly clear that the Florida Legislature desires to have capital


                                         - 10 -
punishment as an available option for those defendants who commit the most

aggravated and least mitigated of murders. Therefore, if faced with the alternative

of having no capital sentencing law whatsoever in the State of Florida, I believe the

Legislature would have enacted the constitutional provisions of the Act without the

invalid subsection.

      Based upon the foregoing, I would conclude that the unconstitutional

provision is severable from the remainder of the Act. Accordingly, with jury

instructions and a recommendation form that conform to the requirements of Hurst,

I agree with the majority that the Act may be applied to pending capital

prosecutions.

LEWIS, J., concurs.

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

      I agree that trial courts may proceed with the guilt phase of pending capital

prosecutions, but I dissent from allowing the penalty phase to proceed until the

Legislature acts to remedy the constitutional problems with chapter 2016-13, Laws

of Florida (the Act), that this Court identified in Perry v. State, 41 Fla. L. Weekly

S449 (Fla. Oct. 14, 2016).4 While it may appear that the solution requires only the


       4. Just as the Legislature enacted a new law following the United States
Supreme Court’s decision in Hurst v. Florida, 136 S. Ct. 616 (2016), I have every
confidence that the Legislature will enact new legislation addressing the
constitutional issues raised by Hurst v. State (Hurst), 202 So. 3d 40 (Fla. 2016),
and Perry, in the upcoming legislative session. In fact, two identical bills—one

                                        - 11 -
simple fix of the trial court judge substituting the 10-2 vote requirement for the

jury’s final recommendation to impose death with a unanimous vote requirement,

the plurality disregards this Court’s longstanding precedent on severability, which

precludes the judiciary from rewriting legislation.5 In fact, the plurality fails to

even explain how a valid capital sentencing scheme “complete in itself” remains

after Perry unless the Act’s unconstitutional provisions are rewritten judicially.

Cramp v. Bd. of Pub. Instr., 137 So. 2d 828, 830 (Fla. 1962).

      In this Court’s longstanding severability analysis, “the key determination is

whether the overall legislative intent is still accomplished without the invalid


proposed by the House and one by the Senate—have already been filed seeking to
remedy the Act’s constitutional infirmities as identified in Hurst and Perry. See
Fla. HB7101 (2016); Fla. SB7068 (2016).

      5. Subsection 921.141(2)(c) currently provides:

            If at least 10 jurors determine that the defendant should be
      sentenced to death, the jury’s recommendation to the court shall be a
      sentence of death. If fewer than 10 jurors determine that the
      defendant should be sentenced to death, the jury’s recommendation to
      the court shall be a sentence of life imprisonment without the
      possibility of parole.

Subsection 921.142(3)(c) currently provides:

            If at least 10 jurors determine that the defendant should be
      sentenced to death, the jury’s recommendation to the court shall be a
      sentence of death. If fewer than 10 jurors determine that the
      defendant should be sentenced to death, the jury’s recommendation to
      the court shall be a sentence of life imprisonment without the
      possibility of parole.


                                         - 12 -
provisions.” State v. Catalano, 104 So. 3d 1069, 1080-81 (Fla. 2012) (citing

Martinez v. Scanlan, 582 So. 2d 1167, 1173 (Fla. 1991)) (emphasis added). The

inquiry is whether “the law’s invalid provisions can be severed,” not whether this

Court may sever and replace the unconstitutional provisions to revive the Act.

Lawnwood Med. Ctr., Inc. v. Seeger, 990 So. 2d 503, 518 (Fla. 2008).

      I recognize that Chief Justice Labarga conducts a severability analysis in his

concurring in result opinion. In fact, I agree with Chief Justice Labarga that “the

unconstitutional portion of the Act can be separated from the rest” of the Act.

Concurring in result op. at 10 (Labarga, C.J.). Indeed, in Perry, this Court

“determin[ed] that the sentencing recommendation is a separate conclusion distinct

from the jury’s findings” because “[i]t has long been true that a juror is not

required to recommend the death sentence even if the jury concludes that the

aggravating factors outweigh the mitigating circumstances.” Perry, 41 Fla. L.

Weekly at S452. However, I disagree that “a complete law remains in [the]

absence,” of the Act’s unconstitutional provisions unless individual courts rewrite

those provisions during capital sentencing proceedings. Concurring in result op. at

9 (Labarga, C.J.).6 Likewise, as the trial court in Rosario originally determined, I



      6. See Seeger, 990 So. 2d at 518 (“The judicial doctrine of severability is
‘derived from the respect of the judiciary for the separation of powers.’ ” (quoting
Ray v. Mortham, 742 So. 2d 1276, 1280 (Fla. 1999)); State v. Elder, 382 So. 2d
687, 690 (Fla. 1980) ( (“The Court will not . . . abandon judicial restraint and

                                        - 13 -
disagree that the plurality’s solution—“[t]rial courts. . . instruct[ing] juries”

consistent with our holding in Hurst v. State (Hurst), 202 So. 3d 40 (Fla. 2016)—is

constitutionally sound. Concurring in result op. at 10 (Labarga, C.J.).

      After our decision in Hurst, a trial judge cannot sentence a capital defendant

to death in Florida without a jury’s unanimous final recommendation for death.

202 So. 3d at 44. Therefore, severing the jury’s final sentence recommendation,

which “is tantamount to the jury’s verdict in the sentencing phase of trial,” from

the Act would gut the capital sentencing statute. Id. at 54. Thus, I conclude that

the Act’s 10-2 requirement for the jury’s final recommendation of death—found in

sections 921.141(2)(c) and 921.142(3)(c)—is not severable from the Act’s other

provisions, which were construed as constitutional in Perry.7 Accordingly, I would

conclude that the Act is void in its entirety and “cannot be applied to pending

prosecutions.” Perry, 41 Fla. L. Weekly at S453.



invade the province of the legislature by rewriting its terms.” (citing Brown v.
State, 358 So. 2d 16, 20 (Fla. 1978)).

       7. The Delaware Supreme Court similarly held, after Hurst v. Florida, that
they were “unable to discern a method by which to parse the[ir] [capital
sentencing] statute so as to preserve it.” Rauf v. Delaware, 145 A.3d 430, 434
(Del. 2016). The Delaware Supreme Court elaborated, “Because we see no way to
sever § 4209, the decision whether to reinstate the death penalty . . . and under
what procedures, should be left to the General Assembly.” Id. Unlike this Court
in Hurst and Perry, the Delaware Supreme Court also commuted all previously
imposed death sentences to life. Powell v. Delaware, 2016 WL 7243546, at *5
(Del. Dec. 15, 2016).


                                         - 14 -
      I assume the plurality’s judicial fix is temporary until the Legislature enacts

new legislation, but what remains uncertain is whether additional appellate issues

will be created by penalty phase proceedings conducted without the benefit of a

new statute. Such concerns are precisely why it is for the Legislature, not this

Court, to enact legislation curing the Act’s fatal 10-2 provisions, assuming the

Legislature intends for the death penalty to continue to be imposed in Florida. For

the reasons explained above, I dissent to allowing trial courts to proceed with the

penalty phase of pending capital prosecutions.8

QUINCE, J., concurs.

Original Proceedings – Prohibition

Allison Ferber Miller and Jane Allie McNeill, Assistant Public Defenders, Sixth
Judicial Circuit, Clearwater, Florida; and Peter Mills, Assistant Public Defender,
Tenth Judicial Circuit, Bartow, Florida,

      for Petitioner Patrick Albert Evans

Roger L. Weeden of the Law Office of Roger L. Weeden, Orlando, Florida,

      for Petitioner Juan Rosario

       8. I concur in part because I agree that trial courts are not prohibited from
proceeding to death qualify the jury and proceeding to the guilt phase of pending
capital prosecutions because the death penalty itself was not declared
unconstitutional by Hurst v. Florida or Hurst. However, in addition to my
disagreement on allowing the penalty phase of pending prosecutions to proceed, I
disagree with the plurality receding from the penultimate conclusion in Perry that
the Act “cannot be applied to pending prosecutions” without explanation and, in a
separate order, denying the pending motion for clarification in Perry as moot rather
than granting clarification and explaining how the remaining parts of the Act can
be applied to pending prosecutions. Perry, 41 Fla. L. Weekly at S453.

                                        - 15 -
Pamela Jo Bondi, Attorney General, Tallahassee, Florida; and Christina Z.
Pacheco, Assistant Attorney General, and Timothy Arthur Freeland, Assistant
Attorney General, Tampa, Florida,

      for Respondent




                                     - 16 -
