             Supreme Court of Florida
                                    ____________

                                    No. SC17-793
                                    ____________

                       MICHAEL GORDON REYNOLDS,
                                Appellant,

                                          vs.

                              STATE OF FLORIDA,
                                   Appellee.

                                    [April 5, 2018]

PER CURIAM.

       This case is before the Court on appeal by Michael Reynolds from an order

denying a motion to vacate sentences of death under Florida Rule of Criminal

Procedure 3.851. Because the order concerns postconviction relief from sentences

of death, this Court has jurisdiction under article V, section 3(b)(1), of the Florida

Constitution. For the reasons explained below, we affirm the circuit court’s denial

of relief.

              FACTUAL AND PROCEDURAL BACKGROUND

       We detailed the underlying crimes in Reynolds’s direct appeal. Reynolds v.

State (Reynolds I), 934 So. 2d 1128, 1135-39 (Fla. 2006). For the purposes of this
proceeding, it is relevant that Reynolds was convicted for the first-degree murders

of Robin and Christina Razor, along with the second-degree murder of Danny

Privett and the burglary of a dwelling with armed battery. Id. at 1135.

      At the penalty phase, Reynolds waived his right to present mitigating

evidence. Outside the presence of the jury, Reynolds was advised of his right to

present mitigation evidence, but he waived that right after conferring with counsel

at length. Moreover, the trial court conducted a thorough colloquy to ensure that

Reynolds understood the rights that he was waiving and even recessed for one day,

giving Reynolds the opportunity to fully consider his decision. Reynolds v. State

(Reynolds II), 99 So. 3d 459, 493-97 (Fla. 2012). Concerning his waiver, Reynolds

explained his decision:

      I don’t want to present a mitigating case here because there’s no such
      thing. I mean, Your Honor, it’s a waste of time because I have [no
      mitigators]. I’ve been locked up all my life.

             ....

             . . . I have no mitigating, I have nothing that’s gonna dictate
      against my record, and I know that the final outcome of this is that
      I’m gonna go to death row, and I would wish, if you would, and if
      y’all would honor that and please let me get this done and get up the
      road. And that’s about the best way I can say it, Your Honor. I’m
      ready to go.

Id. at 493-94 (alteration in original). Trial counsel swore in an affidavit that

Reynolds waived mitigation, “at least in part, because he did not think there was




                                         -2-
any chance of convincing six jurors to vote for life, and did not want to subject his

sisters to the stress of testifying before a jury.”

       In a pretrial motion, Reynolds moved for the use of a special verdict form

containing jury factfinding on aggravation. The trial court denied that motion.

Moreover, in reading the instructions, the trial court informed the jury that “the

final decision as to what punishment shall be imposed is the responsibility of the

judge.” Yet, the trial court explained that it could reject their advisory

recommendation “only if the facts [were] so clear and convincing that virtually no

reasonable person could differ.” The trial court also informed the jury that “the

law require[d] the court to give great weight” to the recommendation.

       After deliberation, the jury unanimously recommended death on each count

of first-degree murder.

       At a Spencer1 hearing, trial counsel filed mitigation with the trial court that it

would have presented at the penalty phase—absent Reynolds’s waiver of that right.

The trial court conducted the Spencer hearing. As a result, the trial court found the

following aggravators proven beyond a reasonable doubt and afforded great weight

to each: for the murder of Robin Razor, the trial court found four aggravators—(1)

Reynolds’s previous conviction for another capital felony or felony involving use




       1. Spencer v. State, 615 So. 2d 688 (Fla. 1993).


                                           -3-
or threat of violence to a person; (2) Reynolds committed the murder while

engaged in, or the accomplice to, or attempting to commit, a burglary; (3) the

murder was committed for the purpose of avoiding a lawful arrest; and (4) the

murder was especially heinous, atrocious, or cruel (HAC)—and for the murder of

Christina Razor, the trial court found the same four aggravators, along with a fifth

aggravator—the victim of the murder was a person less than twelve years old. On

each count of first-degree murder, the trial court found the existence of four

statutory mitigators and afforded little weight to each: (1) Reynolds was gainfully

employed; (2) Reynolds manifested appropriate courtroom behavior; (3) Reynolds

cooperated with law enforcement; and (4) Reynolds had a difficult childhood,

including various subparts.2 In accordance with Muhammad v. State, 782 So. 2d

343 (Fla. 2001), the trial court did not afford great weight to the unanimous jury

recommendation because the jury did not hear the mitigation.3 After weighing the

substantial aggravation against the minimal mitigation, the trial court sentenced

Reynolds to death for the murders of Robin and Christina Razor.




     2. The trial court rejected two statutory mitigators and afforded them no
weight: (1) residual doubt; and (2) Reynolds’s easy adjustment to prison life.

      3. Any question regarding the continued vitality of Muhammad is not before
us today.


                                        -4-
      Reynolds appealed his convictions and sentences to this Court, and we

affirmed. Reynolds I, 934 So. 2d at 1161. His petition for writ of certiorari was

denied by the United States Supreme Court on January 8, 2007. Reynolds v.

Florida, 549 U.S. 1122 (2007). Pursuant to Florida Rule of Criminal Procedure

3.851, Reynolds filed his initial motion for postconviction relief, raising several

claims. After an evidentiary hearing, the circuit court denied each claim, which we

affirmed along with denying his petition for writ of habeas corpus. Reynolds II, 99

So. 3d at 501.

      Following Hurst v. State (Hurst), 202 So. 3d 40 (Fla. 2016), cert. denied,

137 S. Ct. 2161 (2017), Reynolds filed the instant successive motion to vacate his

sentences of death. After a case management conference on March 2, 2017, the

circuit court denied Reynolds’s successive motion in a subsequent written order.

      This appeal follows.

                                    ANALYSIS

      In this successive postconviction motion, Reynolds raises two claims: (1) his

death sentences violate the Sixth Amendment in light of Hurst and Hurst v.

Florida, 136 S. Ct. 616 (2016); and (2) his death sentences violate the Eighth

Amendment under Caldwell v. Mississippi, 472 U.S. 320 (1985), and must be

vacated in light of Hurst, Hurst v. Florida, and Perry v. State, 210 So. 3d 630 (Fla.




                                         -5-
2016). These issues present purely legal questions, which we review de novo.

E.g., Mosley v. State, 209 So. 3d 1248, 1262 (Fla. 2016).

                         Sixth Amendment Hurst Claim

      Reynolds contends that the circuit court erred in denying his successive

motion for postconviction relief pursuant to Hurst under the Sixth Amendment.

      Reynolds’s death sentences became final when the Supreme Court denied

his writ of certiorari on January 8, 2007. Reynolds v. Florida, 549 U.S. 1122.

Because the sentences became final after Ring v. Arizona, 536 U.S. 584 (2002),

Hurst applies retroactively to this case. E.g., Mosley, 209 So. 3d at 1274-83

(applying Hurst retroactively to a post-Ring, postconviction defendant). In Hurst,

we held “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.” 202 So. 3d at 54. Further, we concluded that Hurst error is capable of

harmless error review. Id. at 66-68; see, e.g., King v. State, 211 So. 3d 866, 889

(Fla. 2017). Accordingly, we must decide whether Reynolds’s Hurst error was

harmless beyond a reasonable doubt. E.g., Davis v. State, 207 So. 3d 142, 174

(Fla. 2016).

      In Hurst, we explained our standard for harmless error review:


                                        -6-
      Where the error concerns sentencing, the error is harmless only if
      there is no reasonable possibility that the error contributed to the
      sentence. 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,” 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 the 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.

      “The question is whether there is a reasonable possibility that the error
      affected the [sentence].”

202 So. 3d at 68 (citations omitted) (alteration in original) (quoting State v.

DiGuilio, 491 So. 2d 1129, 1137-38 (Fla. 1986)).4 Under this standard, our

harmless error analyses in the wake of Hurst have varied due to the individualized,




        4. Relatedly, Reynolds contends that the Hurst error was harmful because
trial counsel would have tried the case differently under the new law. To be sure,
attorneys have different considerations to make in the post-Hurst landscape.
Reynolds’s claim, however, amounts to nothing more than pure speculation.
Additionally, as demonstrated above, our harmless error review focuses on the
effect on the trier of fact—here the jury—not on potential, after-the-fact trial
strategy. For these reasons, this portion of Reynolds’s claim fails.


                                         -7-
case-by-case approach. However, we have conducted these analyses within the

same general framework described below.

      Preliminarily, we look to whether the jury recommendation was unanimous.

See, e.g., Kaczmar v. State, 228 So. 3d 1, 9 (Fla. 2017); Jones v. State, 212 So. 3d

321, 343-44 (Fla. 2017); King, 211 So. 3d at 890; Davis, 207 So. 3d at 174-75.

Here, the jury recommendation was unanimous. Although Reynolds’s jury was

instructed that it was “not necessary that the advisory sentence . . . be unanimous,”

it nonetheless returned two unanimous death sentences. See Davis, 207 So. 3d at

174-75. Reynolds attempts to analogize his case to nonunanimous decisions such

as Johnson v. State, 205 So. 3d 1285 (Fla. 2016). That comparison falls flat. We

have been abundantly clear that there is a critical distinction between unanimous

and nonunanimous jury recommendations as they pertain to Hurst error. E.g.,

Davis, 207 So. 3d at 174 (“[W]e emphasize the unanimous jury recommendations

of death.”). Therefore, Reynolds’s case is fundamentally different from any

nonunanimous cases where Hurst relief was appropriate.

      Yet a unanimous recommendation is not sufficient alone; rather, it “begins a

foundation for us to conclude beyond a reasonable doubt that a rational jury would

have unanimously found that there were sufficient aggravators to outweigh the

mitigating factors.” King, 211 So. 3d at 890. Hence, we look to other factors such




                                        -8-
as the jury instructions. Kaczmar, 228 So. 3d at 9; King, 211 So. 3d at 890-91;

Davis, 207 So. 3d at 174-75.

      A review of the record reveals that the trial court instructed Reynolds’s jury

using Florida Standard Jury Instruction (Criminal) 7.11. We have rejected similar

Hurst claims where defendants received Standard Jury Instruction 7.11. Kaczmar,

228 So. 3d at 9; Knight v. State, 225 So. 3d 661, 682-83 (Fla. 2017); Davis, 207

So. 3d at 174. Moreover, a review of Kaczmar, Knight, and Davis demonstrates

that the critical instructions given in those cases were similar to those given here.

The trial court here instructed the jury, “It is your duty to . . . render to the court an

advisory sentence based upon your determination as to whether sufficient

aggravating circumstances exist to justify the imposition of the death penalty and

whether sufficient mitigating circumstances exist to outweigh any aggravating

circumstances found to exist.” See Davis, 207 So. 3d at 174 (“The instructions that

were given informed the jury that it needed to determine whether sufficient

aggravators existed and whether the aggravation outweighed the mitigation before

it could recommend a sentence of death.”). Even though Reynolds’s jury was

instructed that unanimous recommendations were not required at that time, the jury

still returned two unanimous death sentence recommendations, similar to the

circumstances that we upheld in Kaczmar, Knight, and Davis. See Knight, 225 So.

3d at 683 (“Knight’s ‘jury was not informed that the finding that sufficient


                                           -9-
aggravating circumstances outweighed the mitigating circumstances must be

unanimous, and . . . the jury did, in fact, unanimously recommend death.’ ”

(quoting Davis, 207 So. 3d at 174-75) (alteration in original)).

      Absent from Reynolds’s jury instructions was a mercy instruction, which we

used to support our harmless error conclusions in Davis and Kaczmar.5

Nevertheless, we have held that the failure to give a mercy instruction alone does

not necessarily make a Hurst error harmful. Knight, 225 So. 3d at 683 (“[T]he

Davis jury ‘was instructed that it was not required to recommend death even if the

aggravators outweighed the mitigators,’ while Knight’s jury was not. Nonetheless,

we believe that Knight’s jury received substantially the same critical instructions as

Davis’s jury.” (citation omitted)). Moreover, in his briefs, Reynolds fails to

mention that the mercy instruction was not added to Standard Jury Instruction 7.11

until October 2009—before Davis and Kaczmar’s penalty phases but after

Reynolds’s penalty phase in 2003. In re Std. Jury Instr. in Crim. Cases–Report

No. 2005-2, 22 So. 3d 17, 22, 35 (Fla. 2009); Davis, 207 So. 3d at 155 (penalty

phase in 2011); Kaczmar, 228 So. 3d at 6 (second penalty phase in 2013). For

these reasons, and in accordance with our decisions in Davis, Kaczmar, and




      5. The mercy instruction is the portion of Standard Jury Instruction 7.11 that
informs a jury that they are “neither compelled nor required to recommend” death.
Perry, 210 So. 3d at 640.


                                        - 10 -
Knight, we can conclude that Reynolds’s “jury unanimously made the requisite

factual findings to impose death before it issued the unanimous recommendations.”

Davis, 207 So. 3d at 175.

      Next, we review the aggravators and mitigators. See King, 211 So. 3d at

891-92; Davis, 207 So. 3d at 175. Before doing so, however, there is an important

distinction between this case and Davis that must be addressed: Reynolds waived

his right to present mitigation, while Davis did not. At first blush, this may appear

problematic, but we have concluded that a defendant’s waiver of the right “to

present mitigation to the jury during the penalty phase has no bearing” on a

cognizable Hurst claim. Jones, 212 So. 3d at 343 n.3. In Jones, we reasoned that

the refusal to present mitigation could not give rise to a subsequent Hurst claim:

      As previously stated, Jones’s waiver of that right was valid, and he
      “cannot subvert the right to jury factfinding by waiving that right and
      then suggesting that a subsequent development in the law has
      fundamentally undermined his sentence.” Mullens v. State, 197 So.
      3d 16, 40 (Fla. 2016), cert. denied, 137 S. Ct. 672 (2017).

Id. Following the reasoning of Mullens, Reynolds—similar to Jones and

Mullens—waived his right to jury factfinding on mitigation under the Sixth

Amendment. Because he waived that right, he cannot now claim a harmful error

for the lack of jury factfinding that he knowingly waived. See Mullens, 197 So. 3d

at 40. Prior to Reynolds’s penalty phase, trial counsel, along with the trial court,

attempted to influence Reynolds to reverse his decision and ensured that he was


                                        - 11 -
examined by a mental health expert. Reynolds II, 99 So. 3d at 485 n.9, 493-94.

Nonetheless, Reynolds chose to waive his right to present mitigation because he

considered it a “waste of time” as he had no mitigation. Id. at 493. Reynolds now

claims that his decision was the result of his belief that he could not convince six

jurors to vote for life and, as trial counsel noted, Reynolds’s desire not to “subject

his sisters to the stress of testifying before a jury.” Yet the reason that Reynolds

waived mitigation is not pertinent to this analysis under Mullens and Jones.

Instead, the dispositive fact concerning Reynolds’s waiver is that he knowingly

and intelligently waived his right to jury factfinding on mitigation. See Mullens,

197 So. 3d at 39-40 (“[W]e fail to see how Mullens, who was entitled to present

mitigating evidence to a jury as a matter of Florida law even after he pleaded

guilty and validly waived that right, can claim error.”).

      Also, there was not a complete absence of mitigation. Despite his waiver,

the trial court considered Reynolds’s limited mitigation. As a result, the trial court

found four mitigators and afforded little weight to each. Furthermore, Reynolds’s

waiver was factually less problematic than other waivers that we have upheld. For

instance, in Kaczmar, a jury returned an eleven-to-one recommendation for death

after hearing mitigation. 228 So. 3d at 5. However, a second penalty phase jury

returned a unanimous recommendation on remand after the defendant waived

mitigation. Id. at 6. Despite this fact, we found the Hurst error harmless and


                                         - 12 -
denied relief. Id. at 9. It follows that Reynolds’s decision to waive mitigation does

not constitute a per se harmful Hurst error. See Jones, 212 So. 3d at 343 & n.3;

Kaczmar, 228 So. 3d at 9.6

      Turning back to the comparison between aggravators and mitigators, we

have stated that “it must be clear beyond a reasonable doubt that a rational jury

would have unanimously found that there were sufficient aggravating factors that

outweighed the mitigating circumstances.” Davis, 207 So. 3d at 174. Here, there

were four and five aggravators found in the murders of Robin and Cristina Razor,

respectively. Although the trial court found certain mitigating factors, those

circumstances could not have affected the jury because Reynolds waived

presentation of mitigation to his jury. Even leaving aside the aggravators that

could arguably require a factual finding by the jury, the aggravation here

necessarily outweighed the mitigation. Consequently, there is no reasonable

dispute as to whether the aggravation outweighed the mitigation, and the jury

correspondingly returned death recommendations by twelve-to-zero votes.

      Finally, we look at the facts of the case. See King, 211 So. 3d at 891-92.

Here, as Privett relieved himself, Reynolds smashed his head with a cinder block.



      6. Although Justice Pariente is within her prerogative to continue
disagreeing on this point of law, it should be noted that the dissenting position has
been soundly rejected by this Court. See Grim v. State, No. SC17-1071 (Fla. Mar.
29, 2018); Jones, 212 So. 3d at 343 & n.3; Kaczmar, 228 So. 3d at 9.


                                        - 13 -
Reynolds I, 934 So. 2d at 1135-36, 1157. Then, Reynolds proceeded to kill

Christina and Robin Razor—an eleven-year-old girl and her mother—by beating

and stabbing them to death because, in Reynolds’s words, “with [his] record [he]

couldn’t afford to leave any witnesses.” Id. The “egregious facts of this case”

firmly buttress the conclusion that the Hurst error was harmless beyond a

reasonable doubt. See, e.g., Davis, 207 So. 3d at 175.

      Accordingly, we affirm and conclude that “this is one of those rare cases in

which the Hurst error was harmless beyond a reasonable doubt.” King, 211 So. 3d

at 890; see also Knight, 225 So. 3d at 683; Davis, 207 So. 3d at 175.

                       Eighth Amendment Caldwell Claim

      Reynolds also contends that the circuit court erred in denying his successive

motion for postconviction relief pursuant to Hurst under the Eighth Amendment.

Specifically, Reynolds argues that his sentences violated the Eighth Amendment

under Caldwell.7 To date, we have not expressly addressed a Caldwell challenge



        7. Reynolds asserts two other Eighth Amendment arguments. The first, that
trial counsel would have tried the case differently under the new law, does not
merit discussion, as noted above. See supra note 4. The second, that his
indictment failed to list the aggravators, is similarly meritless. We have
“repeatedly rejected the argument that aggravating circumstances must be alleged
in the indictment.” Pham v. State, 70 So. 3d 485, 496 (Fla. 2011). Moreover, prior
to Hurst, we held that “neither Apprendi nor Ring requires that aggravating
circumstances be charged in the indictment.” Rogers v. State, 957 So. 2d 538, 554
(Fla. 2007). It follows that Hurst did not impact this settled point of law; therefore,
this part of Reynolds’s Eighth Amendment claim necessarily fails as well.


                                        - 14 -
to Standard Jury Instruction 7.11 brought under Hurst8; thus, we must determine if

a legal basis exists for these types of “Hurst-induced Caldwell claims.” We have

labeled these as Hurst-induced Caldwell claims because that distills the essence of

the challenge: Hurst and its progeny render the previous Standard Jury Instruction

violative of Caldwell.9

                             Relevant Legal Background

      As an introductory matter, it is necessary to review the jurisprudential

development of this issue, which began in Florida long before Caldwell. In

Blackwell v. State, 79 So. 731 (Fla. 1918), we held that it was reversible error for a

prosecutor to make comments that “lessen [a jury’s] estimate of the weight of their

responsibility, and cause them to shift it from their consciences to the Supreme

Court.” Id. at 736. There, the prosecutor stated, “If there is any error committed in




      8. Other defendants have raised these claims, which we have rejected
without discussion. See, e.g., Truehill v. State, 211 So. 3d 930 (Fla.), cert. denied,
138 S. Ct. 3 (2017). In light of the dissenting opinions to the denial of certiorari in
Truehill v. Florida, however, we now explicitly address what has already been
implicitly decided.

      9. The special concurrence takes issue with our viewing this Caldwell claim
“through the lens of Hurst.” Concurring specially op. at 37-38 (Lawson, J.).
However, we only view Caldwell through the Hurst lens here because that is the
claim that Reynolds—along with numerous other defendants—raised. As
explained in detail below, we agree with the special concurrence that these types of
claims categorically fail and improperly use Caldwell. This Court, however, must
acknowledge the challenge in order to answer it definitively.


                                         - 15 -
this case, the Supreme Court, over in the capital of our state, is there to correct it, if

any error should be done.” Id. at 735. Despite an objection, the trial court refused

to correct that statement and expressly approved of it, which we reversed. Id. at

735-36. We noted that the “purpose and effect of this remark was to suggest to the

jury that they need not be too greatly concerned about the result of their

deliberation” because this Court would be waiting in the wings to correct any

errors. Id.

      Years later, in Pait v. State, 112 So. 2d 380, 383-86 (Fla. 1959), we reached

a similar outcome on analogous facts. Among other statements, the prosecutor

there told the jury, “This is the last time the People of this State will try this case in

this court. Because whatever you do, the People have no right of appeal. They are

done. This is their day. But he may have another day; he has an appeal.” Id. at

383. We noted that the prosecutor’s comment “incorrectly stated the law” and was

a type of situation when a statement “so deeply implant[ed] seeds of prejudice or

confusion that even in the absence of a timely objection at the trial level it

[became] the responsibility of this court to point out the error” and reverse. Id. at

384. We concluded that it was impossible for us, as an appellate court, to

determine whether the “improper and erroneous” comments persuaded the jury;

thus, we could not “say that they were non-prejudicial and harmless.” Id. at 386.




                                          - 16 -
      Taken together, Blackwell and Pait in some ways represented in Florida

what Caldwell would become nationally. Some legal commentators have noted as

much, “Blackwell and Pait were Caldwell before Caldwell was Caldwell.” Craig

Trocino & Chance Meyer, Hurst v. Florida’s Ha’p’orth of Tar: The Need to Revisit

Caldwell, Clemons, and Proffitt, 70 U. Miami. L. Rev. 1118, 1134 (2016). One

critical distinction, however, is that our cases did not “condemn false prosecutorial

[and judicial] statements under the Eighth Amendment analysis employed in

Caldwell.” Sawyer v. Smith, 497 U.S. 227, 239 (1990). It is clear that, even in the

absence of Caldwell, Florida has a long history of ensuring that jurors understand

their role and are not misled as to their responsibility. Yet Caldwell represented

something different than Blackwell and Pait because it placed the Eighth

Amendment imprimatur upon those general principles. See Sawyer, 497 U.S. at

238-40; Caldwell, 472 U.S. at 328-30.

      In Caldwell, the Supreme Court ruled that “it is constitutionally

impermissible to rest a death sentence on a determination made by a sentencer who

has been led to believe that the responsibility for determining the appropriateness

of the defendant’s death rests elsewhere.” Id. at 328-29. On facts nearly identical

to Blackwell, the Supreme Court took issue with a Mississippi prosecutor’s

comments to the jury mentioning automatic review by their high court:

      Now, they would have you believe that you’re going to kill this man
      and they know—they know that your decision is not the final

                                        - 17 -
      decision. My God, how unfair can you be? Your job is reviewable.
      They know it. . . .

             ....

             . . . They said ‘Thou shalt not kill.’ If that applies to him, it
      applies to you, insinuating that your decision is the final decision and
      that they’re gonna take Bobby Caldwell out in the front of this
      Courthouse in moments and string him up and that is terribly, terribly
      unfair. For they know, as I know, and as Judge Baker has told you,
      that the decision you render is automatically reviewable by the
      Supreme Court. Automatically, and I think it’s unfair and I don’t
      mind telling them so.

Id. at 325-26 (emphasis added). The Supreme Court reversed the death sentence

because the prosecutor “sought to minimize the jury’s sense of responsibility,” and

the Court could not “say that this effort had no effect on the sentencing decision,”

which did “not meet the standard of reliability that the Eighth Amendment

requires.” Id. at 341. The Court reasoned that shifting a jury’s sense of

responsibility to appellate courts could create “substantial unreliability as well as

bias in favor of death sentences.” Id. at 330. Such indications to the jury could

persuade jurors to rely on appellate courts to correct their errors, therefore

completely depriving defendants of their right to a determination of the

appropriateness of death due to the nature of appellate review. Id. at 330-33.

      Justice O’Connor cast the deciding fifth vote in Caldwell. Her concurring in

part opinion explained a disagreement with the Court’s analysis of California v.

Ramos, 463 U.S. 992 (1983). Caldwell, 472 U.S. at 341-43. She wrote,


                                         - 18 -
      In my view, the prosecutor’s remarks were impermissible because
      they were inaccurate and misleading in a manner that diminished the
      jury’s sense of responsibility. I agree there can be no “valid state
      penological interest” in imparting inaccurate or misleading
      information that minimizes the importance of the jury’s deliberations
      in a capital sentencing case.

Id. at 342. According to Justice O’Connor, the Court read Ramos too broadly, and

she concluded that Ramos did not preclude a jury from hearing accurate

instructions about postsentencing procedures. Caldwell, 472 U.S. at 342. Because

the Mississippi Supreme Court applied a presumption of correctness to the jury

verdict and could only overturn it under limited circumstances, Justice O’Connor

opined that misleading the jury to believe that the appellate court would make the

final decision was inaccurate. Id. at 342-43. However, she noted that if “a State

conclude[s] that the reliability of its sentencing procedure is enhanced by

accurately instructing the jurors on the sentencing procedure, including the

existence and limited nature of appellate review,” then Ramos would not

“foreclose a policy choice in favor of jury education.” Caldwell, 472 U.S. at 342.

      Following Caldwell, the status of Florida jury recommendations as

“advisory” was somewhat unsettled. We conclusively held that Florida’s

sentencing scheme was distinguishable from the procedure at issue in Caldwell,

that jury recommendations in Florida were “merely advisory,” and that it was not a

Caldwell violation to refer to the jury as “advisory” as long as “the jury’s role was

adequately portrayed and they were in no way misled as to the importance of their

                                        - 19 -
role.” Pope v. Wainwright, 496 So. 2d 798, 805 (Fla. 1986). Meanwhile, various

opinions from the Eleventh Circuit Court of Appeals questioned our determination.

For instance, in Adams v. Wainwright (Adams I), 804 F.2d 1526 (11th Cir. 1986),

partially vacated and modified sub nom. Adams v. Dugger (Adams II), 816 F.2d

1493 (11th Cir. 1987), rev’d, 489 U.S. 401 (1989), the Eleventh Circuit held that

Caldwell applied to Florida’s then-existing sentencing scheme and that certain

statements made by a trial court constituted a Caldwell violation by creating “an

intolerable danger that the jury’s sense of responsibility for its advisory sentence

was diminished.” Adams I, 804 F.2d at 1529. In Combs v. State, 525 So. 2d 853,

856 (Fla. 1988), we again distinguished the sentencing scheme at issue in

Caldwell, thus finding Caldwell inapplicable in Florida. Moreover, we reiterated

our understanding—at the time—that the standard jury instruction referring to the

jury’s recommendation as “advisory” and the trial court as the final sentencer

comported with the death penalty statute and properly described the jury’s role.

Combs, 525 So. 2d at 856-57. We looked to the plain language of the statute to

support our conclusion:

             (2) ADVISORY SENTENCE BY THE JURY.—After hearing
      all the evidence, the jury shall deliberate and render an advisory
      sentence to the court, based upon the following matters: . . . .

             (3) FINDINGS IN SUPPORT OF SENTENCE OF DEATH.—
      Notwithstanding the recommendation of a majority of the jury, the
      court, after weighing the aggravating and mitigating circumstances,
      shall enter a sentence of life imprisonment or death . . . .

                                        - 20 -
Id. at 857 (quoting § 921.141(2)-(3), Fla. Stat. (1985)).10 Further, we stated that it

was not our intention to circumvent the clear statutory directive for an advisory

jury role when we held that a trial court may override a jury’s life sentence only if

the “facts are ‘so clear and convincing that virtually no reasonable person could

differ.’ ” Id. (quoting Tedder v. State, 322 So. 2d 908, 910 (Fla. 1975)). We stated

much of the same in Grossman v. State, 525 So. 2d 833 (Fla. 1988), receded from

on other grounds by Franqui v. State, 699 So. 2d 1312, 1319-20 (Fla. 1997), and

there specifically rejected the argument that Tedder created a rule where “the

weight given to the jury’s advisory recommendation [wa]s so heavy as to make it

the de facto sentence.” Id. at 840. Later, in companion opinions, the Eleventh

Circuit found Caldwell error in Mann v. Dugger, 844 F.2d 1446 (11th Cir. 1988)

(en banc), but no error in Harich v. Dugger, 844 F.2d 1464 (11th Cir. 1988) (en

banc).11 Those decisions made clear that the Eleventh Circuit at that time focused

primarily on whether the comments minimized the jury’s sense of responsibility

and whether the trial court “sufficiently correct[ed] the impression.” Mann, 844




      10. The excerpted language from section 921.141, Florida Statutes,
remained substantively unchanged between Combs and Hurst v. Florida.

       11. Judge Tjoflat’s special concurrence was actually the Eleventh Circuit’s
plurality opinion as it pertained to the Caldwell issue in Harich. Harich, 844 F.2d
at 1475; see Davis v. Singletary, 119 F.3d 1471, 1482 n.5 (11th Cir. 1997).


                                        - 21 -
F.2d at 1456 (quoting McCorquodale v. Kemp, 829 F.2d 1035, 1037 (11th Cir.

1987)); see Harich, 844 F.2d at 1477-78 (Tjoflat, J., concurring specially).

      In the midst of this confusion, the Supreme Court reviewed Adams II and

issued its decision in Dugger v. Adams (Adams III), 489 U.S. 401 (1989). In

Adams III, the Supreme Court did not reach the merits of the Caldwell issue,

reversing the Eleventh Circuit instead on procedural bar grounds. Adams III, 489

U.S. at 407-08, 408 n.4. The Court thus did “not decide whether in fact the jury as

instructed in this case was misinformed of its role under Florida law,” and left the

question open. Id. at 408 n.4.

      A few years later, the Supreme Court clarified its Caldwell holding in

Romano v. Oklahoma, 512 U.S. 1, 8-10 (1994). There, the defendant was tried

separately for two murders. Id. at 3. The first trial resulted in a death sentence. Id.

Evidence of the first death sentence was introduced and considered by the jury in

the second trial, which resulted in a second death sentence. Id. During appeal of

the second trial, the first death sentence was vacated and that case remanded for a

new trial. Id. at 5. With his second death sentence still on appeal, the defendant

argued, in part, that introduction of a prior death sentence undermined the second

jury’s “sense of responsibility for determining the appropriateness of the death

penalty.” Id. at 3. The Supreme Court disagreed. Id. In its analysis, the Court




                                        - 22 -
clarified that Justice O’Connor’s position in Caldwell, as set forth in her

concurring in part opinion, was controlling over the plurality view there:

      Accordingly, we have since read Caldwell as “relevant only to certain
      types of comment—those that mislead the jury as to its role in the
      sentencing process in a way that allows the jury to feel less
      responsible than it should for the sentencing decision.” Darden v.
      Wainwright, 477 U.S. 168, 184 n.15 (1986). Thus, “[t]o establish a
      Caldwell violation, a defendant necessarily must show that the
      remarks to the jury improperly described the role assigned to the jury
      by local law.” Dugger [III], 489 U.S. [at] 407.

Romano, 512 U.S. at 9 (first alteration in original). Despite the fact that the first

death sentence was vacated after his second jury considered it as evidence, the

Supreme Court still found that the “infirmity identified in Caldwell [wa]s simply

absent in this case: Here, the jury was not affirmatively misled regarding its role in

the sentencing process.” Romano, 512 U.S. at 9.

      In the aftermath of Romano, the Eleventh Circuit brought its understanding

of Caldwell in line with our interpretation of its application to Florida. Davis v.

Singletary, 119 F.3d 1471 (11th Cir. 1997). In Davis, the Eleventh Circuit

expressly overruled any implication in Mann and Harich “that a prosecutorial or

judicial comment or instruction could constitute Caldwell error even if it was a

technically accurate description under state law of the jury’s actual role.” Id. at

1482. The court noted that such “implications cannot survive the Supreme Court’s

subsequent holdings” in Romano. Davis, 119 F.3d at 1482. As a result, the

Eleventh Circuit held

                                         - 23 -
      that the references to and descriptions of the jury’s sentencing verdict
      in this case as an advisory one, as a recommendation to the judge, and
      of the judge as the final sentencing authority are not error under
      Caldwell. Those references and descriptions are not error, because
      they accurately characterize the jury’s and judge’s sentencing roles
      under Florida law.

Id. at 1482.

      With the relevant history in mind, we now address the claim at issue. The

basic argument for such claims follows: after Hurst, jury verdicts are no longer

advisory and must be unanimous; thus, a jury that was not instructed as such before

Hurst did not understand its role or feel the weight of its sentencing responsibility.

Due to the different considerations for these claims in relation to Ring, pre-Ring

and post-Ring claims will be discussed separately.

                             Pre-Ring Caldwell Claims

      After Romano and before Ring, Florida law was settled that it was not a

Caldwell error to refer to jury recommendations as “advisory” and the trial court as

the final sentencer. E.g., Card v. State, 803 So. 2d 613, 628 (Fla. 2001); Sireci v.

State, 773 So. 2d 34, 40 nn.9 & 11 (Fla. 2000); Teffeteller v. Dugger, 734 So. 2d

1009, 1026 (Fla. 1999); Brown v. State, 721 So. 2d 274, 283 (Fla. 1998); Burns v.

State, 699 So. 2d 646, 655 (Fla. 1997); Johnson v. State, 660 So. 2d 637, 647 (Fla.

1995); see also Davis, 119 F.3d at 1482. Similarly, before Ring there was no

authoritative indication that there were any constitutional infirmities with Florida’s

capital sentencing scheme. See Walton v. Arizona, 497 U.S. 639, 647-48 (1990),

                                        - 24 -
abrogated by Ring, 536 U.S. at 609; Hildwin v. Florida, 490 U.S. 638, 639-41

(1989), abrogated by Hurst v. Florida, 136 S. Ct. at 623; Spaziano v. Florida, 468

U.S. 447, 462-65 (1984), abrogated by Hurst v. Florida, 136 S. Ct. at 623; Proffitt

v. Florida, 428 U.S. 242, 259-60 (1976). Therefore, there cannot be a pre-Ring,

Hurst-induced Caldwell challenge to Standard Jury Instruction 7.11 because the

instruction clearly did not mislead jurors as to their responsibility under the law;

therefore, there was no Caldwell violation. See Romano, 512 U.S. at 9. The

Standard Jury Instruction cannot be invalidated retroactively prior to Ring simply

because a trial court failed to employ its divining rod successfully to guess at

completely unforeseen changes in the law by later appellate courts.

      Moreover, Ring became the cutoff that we set for any and all Hurst-related

claims. Hitchcock v. State, 226 So. 3d 216, 217 (Fla.), cert. denied, 138 S. Ct. 513

(2017); see, e.g., Asay v. State, 210 So. 3d 1, 15-22 (Fla. 2016). As a practical

matter, a Hurst-induced Caldwell claim cannot be more retroactive than Hurst

because the rights announced in Hurst serve as the basis for this type of Caldwell

claim—the two are inextricably intertwined for the purposes of this challenge. If

rights are not retroactive prior to Ring, then any pre-Ring claim based on those

rights plainly cannot stand.




                                        - 25 -
                             Post-Ring Caldwell Claims

      Ring presented the first indication that Florida’s then-existing death

sentencing scheme may be unconstitutional; so, pre-Ring and post-Ring Hurst-

induced Caldwell claims are properly addressed separately. Nevertheless—for

these claims—Ring amounts to a distinction without a difference. Similar to the

discussion above, neither Ring nor Hurst provides bases for Caldwell challenges to

the standard jury instruction given in the interim, between 2002 and 2016, because

these challenges cannot withstand the Supreme Court’s holding in Romano. See

512 U.S. at 9.

      To be sure, following Ring, various members of this Court called into

question the constitutionality of Florida’s death scheme, going so far as to

specifically recommend that the standard jury instruction be revised pursuant to

Caldwell in light of Ring. See, e.g., Bottoson v. Moore, 833 So. 2d 693, 731-34

(Fla. 2002) (Lewis, J., concurring in result only). Despite this recognition, a

majority never conclusively answered Ring’s effect on Florida’s death scheme.

See Jackson v. State, 213 So. 3d 754, 781 (Fla. 2017); Johnson v. State, 904 So. 2d

400, 406-07 (Fla. 2005) (leaving the question open while denying retroactive

application of Ring to postconviction defendants). In plurality opinions, Bottoson

and King v. Moore, 831 So. 2d 143 (Fla. 2002), we “concluded that Ring did not

apply to Florida because the Supreme Court had previously affirmed Florida’s


                                        - 26 -
capital sentencing process.” Jackson, 213 So. 3d at 781. And, “[a]lthough neither

Bottoson nor King constituted majority decisions that represented a clear rule of

law from this Court, the ultimate result was that Ring was never applied in this

State.” Id. It was not until Hurst v. Florida that Ring was decisively applied to

Florida’s sentencing scheme. Hurst v. Florida, 136 S. Ct. at 621-22.

      Because we never applied Ring to Florida’s scheme, that case did not change

our understanding of the jury’s role as advisory and it continued as such.12 In the

meantime, we held that the standard jury instruction neither denigrated the jury’s

role nor violated Caldwell nearly every year between Ring and Hurst v. Florida.

See, e.g., Davis v. State, 136 So. 3d 1169, 1201 (Fla. 2014); Foster v. State, 132

So. 3d 40, 75 (Fla. 2013); Patrick v. State, 104 So. 3d 1046, 1064 (Fla. 2012);

Barwick v. State, 88 So. 3d 85, 108-09 (Fla. 2011); Phillips v. State, 39 So. 3d 296,

304 (Fla. 2010); Reese v. State, 14 So. 3d 913, 920 (Fla. 2009); Jones v. State, 998

So. 2d 573, 590 (Fla. 2008); Barnhill v. State, 971 So. 2d 106, 117 (Fla. 2007);

Miller v. State, 926 So. 2d 1243, 1257 (Fla. 2006); Rodriguez v. State, 919 So. 2d

1252, 1280 (Fla. 2005); Globe v. State, 877 So. 2d 663, 673-74 (Fla. 2004); Griffin




       12. In fact, the advisory nature of jury recommendations was the entire
point of Hurst v. Florida. 136 S. Ct. at 619 (“We hold this sentencing scheme
unconstitutional. The Sixth Amendment requires a jury, not a judge, to find each
fact necessary to impose a sentence of death. A jury’s mere recommendation is not
enough.”).


                                        - 27 -
v. State, 866 So. 2d 1, 14 (Fla. 2003).13 Therefore, Romano applies with equal

force to these post-Ring Caldwell claims. The mere contention that Standard Jury

Instruction 7.11 referred to the jury as “advisory” and the trial court as the final

sentencer cannot constitute a Caldwell violation because it fails to “show that the

remarks to the jury improperly described the role assigned to the jury by local

law.” Romano, 512 U.S. at 9 (quoting Adams III, 489 U.S. at 407). Florida law, as

it existed between 2002 and 2016, was settled that the standard jury instruction

“fully advise[d] the jury of the importance of its role, correctly state[d] the law,

d[id] not denigrate the role of the jury and d[id] not violate Caldwell.” Patrick,

104 So. 3d at 1064 (quoting Jones, 998 So. 2d at 590).14 In Romano, despite the




       13. Federal courts also agreed with our conclusion in this regard. See, e.g.,
Davis v. Sec’y, Dep’t of Corrs., No. 8:08-cv-1842-T-33MAP, 2009 WL 3336043
*1, *32 (M.D. Fla. Oct. 15, 2009) (“Because Florida law remains unchanged after
Ring, and because the standard jury instructions accurately describe the jury role at
sentencing under Florida law, there can be no Caldwell violation.” (citing Romano,
512 U.S. at 9)); see also Belcher v. Sec’y, Dep’t of Corrs., 427 Fed. App’x 692,
695 (11th Cir. 2011); Troy v. Sec’y, Dep’t of Corrs., No. 8:11-cv-796-T30-AEP,
2013 WL 24212, at *1, *45-47 (M.D. Fla. Jan. 2, 2013); Morris v. Sec’y, Dep’t of
Corrs., No. 8:06-cv-1289-T-27TGW, 2009 WL 3170497, at *1, *38 (M.D. Fla.
Sept. 30, 2009).

      14. The dissent’s acknowledgement that this Court consistently rejected
Caldwell claims after Ring defeats its own argument that certain justices’
recognition of potential problems somehow renders these Hurst-induced Caldwell
claims cognizable. See dissenting op. at 44-46 (Pariente, J.). A majority of the
Court never recognized these Caldwell issues; therefore, juries were not being
misled under Florida law.


                                         - 28 -
fact that the first death sentence, which the second jury relied on as evidence, was

later vacated, the Supreme Court reasoned that there was no Caldwell violation

because the “evidence at issue was neither false at the time it was admitted, nor did

it even pertain to the jury’s role.” Romano, 512 U.S. at 9. Therefore, a Caldwell

claim based on the rights announced in Hurst and Hurst v. Florida cannot be used

to retroactively invalidate the jury instructions that were proper at the time under

Florida law. See Romano, 512 U.S. at 9; Caldwell, 472 U.S. at 342-43 (O’Connor,

J., concurring in part). Caldwell, as interpreted by Romano, ensures that jurors

understand their actual sentencing responsibility; it does not indicate that jurors

must also be informed of how their responsibilities might hypothetically be

different in the future, should the law change.15

      Furthermore, the specific concerns voiced by the Supreme Court in Caldwell

are curtailed when applied to these Hurst-induced Caldwell claims. See Caldwell,

472 U.S. at 330-33. Specifically, most of the Court’s reasoning in Caldwell

stemmed from the fear that jurors would delegate their sentencing responsibility to



       15. Justice Pariente’s dissent completely fails to address Romano, which
results in a flawed conclusion. According to the dissent, “it is difficult to
understand how Florida’s standard jury instructions, following an unconstitutional
statute, did not also create constitutional error.” Dissenting op. at 44.
Occasionally the law is difficult to understand when one ignores the controlling
precedent. Here, Romano makes it easy to understand that there was no Caldwell
violation because the standard jury instruction accurately informed juries of their
then-existing responsibilities.


                                        - 29 -
appellate courts. See id. Conversely, under Florida’s previous standard jury

instruction, any fear would relate to jurors delegating their responsibility to trial

courts rather than appellate courts. Calling the recommendations “advisory” and

the trial court as the final sentencer is certainly less problematic than the references

to appellate review in Caldwell, Blackwell, and Pait because, unlike appellate

courts, trial courts are positioned to make factual findings, which they do every

day.16 While denying the retroactivity of Ring, the Supreme Court specifically

noted that judicial factfinding is not inherently less reliable than jury factfinding.

See Schriro v. Summerlin, 542 U.S. 348, 355-56 (2004) (“[F]or every argument

why juries are more accurate factfinders, there is another why they are less

accurate. . . . When so many presumably reasonable minds continue to disagree

over whether juries are better factfinders at all, we cannot confidently say that

judicial factfinding seriously diminishes accuracy.”). Of course, we now

understand that Florida’s prior sentencing scheme is incompatible with the Sixth

Amendment, Hurst v. Florida, 136 S. Ct. at 619; however, the concerns noted in

Caldwell—regarding the Eighth Amendment—have less force under these




      16. Relatedly, we have expressly rejected Hurst challenges to death
sentences imposed solely by trial courts when defendants waived their rights to a
penalty phase jury. E.g., Mullens, 197 So. 3d at 38-40.


                                         - 30 -
circumstances, and no constitutional infirmity arises because we cannot conclude

that there is a risk of death being imposed arbitrarily or capriciously.

      Reynolds directs us to our Eighth Amendment discussion in Hurst. His

argument is relatively straightforward—Hurst mandated unanimity in jury

sentencing under the Eighth Amendment, which his jury was not instructed on;

thus, his jury did not appreciate the significance of its verdict. Yet, this contention

misapplies our decision in Hurst. Apprendi, Ring, and Hurst v. Florida were Sixth

Amendment cases; and Hurst was largely the same. As Reynolds indicates, one

difference between Hurst and those three earlier cases is that we reached an Eighth

Amendment issue. 202 So. 3d at 59-63.17 However, we concluded that the Eighth

Amendment requires unanimity in jury sentencing. Id. at 59. We did not discuss

jury instructions other than to dispel the apprehension that a single holdout juror

could derail the administration of a penalty phase. Id. at 62-63. Caldwell claims

are related to, but dissimilar from, the Eighth Amendment issue that we discussed

in Hurst. As demonstrated above, Caldwell claims, limited to a certain extent by




       17. The special concurrence disputes our “characterization of [Hurst] as
being compelled by or grounded in the Eighth Amendment.” Concurring specially
op. at 37. Yet Hurst being compelled by or grounded in the Eighth Amendment is
not our “characterization” here; it is specifically part of what Hurst held and
discussed at length. Hurst, 202 So. 3d at 59 (“[T]he foundational precept of the
Eighth Amendment calls for unanimity in any death recommendation that results in
a sentence of death.”).


                                         - 31 -
Romano, focus on a jury’s understanding of the responsibility ascribed to it by law.

That is a wholly different matter from whether the Eighth Amendment requires

jury factfinding and final verdicts to be unanimous. It follows that our discussion

of the Eighth Amendment in Hurst is inapposite to the matter at hand.

      The distinction between Hurst-induced Caldwell claims and the actual rights

announced in Hurst is crucial. Reynolds seeks to conflate the two without any

recognition of their significant differences. This approach is problematic because

it ignores the Sixth and Eighth Amendment rights to a jury trial that we discussed

in Hurst. Rather than arguing entitlement to those rights, the claim seeks relief

solely because Standard Jury Instruction 7.11 in 2003 was not compliant with

Hurst, a case decided thirteen years later. Under such an approach, the holding,

timing, and retroactivity of a later case that changes the law are all irrelevant; and

the only determinative question is whether the jury instructions given then would

be proper today. But that is not Caldwell. This argument stretches Caldwell

thin—to a breaking point—well beyond its holding that a sentencer cannot be

misled “to believe that the responsibility for determining the appropriateness of the

defendant’s death rests elsewhere.” 472 U.S. at 329. Absent limited, unique

circumstances,18 we have granted resentencing to each post-Ring, nonunanimous




      18. See State v. Silvia, 235 So. 3d 349 (Fla. 2018).


                                         - 32 -
defendant who has requested Hurst relief. For those cases that received a

unanimous recommendation, we have individually reviewed the circumstances to

ensure that any Hurst error did not affect the sentence. E.g., Davis, 207 So. 3d at

173-75. In so doing, our constant focus has been on the Sixth and Eighth

Amendment rights to a jury trial elucidated in Hurst; thus, defendants seeking

relief must do so based upon those rights.19 Moreover, as part of our Hurst

harmless error analysis, we already review the jury instructions to determine if the

instructions actually given affected the sentence. See Kaczmar, 228 So. 3d at 9;

King, 211 So. 3d at 890-91; Davis, 207 So. 3d at 174-75. Consistent with our

precedent, we reviewed Reynolds’s jury instructions and concluded that they did

not render his Hurst error harmful. Supra, pp. 8-11.

      Also, acceptance of Hurst-induced Caldwell claims would produce an

absurd result regarding the retroactivity of Hurst because for these claims, unlike

other types of Hurst-related claims, Ring is not determinative. See supra pp. 26-

28; cf. Asay, 210 So. 3d at 15-22. As demonstrated, jury recommendations in

Florida under the previous sentencing scheme were advisory both pre- and post-

Ring. To invalidate Standard Jury Instruction 7.11, despite the fact that it




      19. Our discussion in this case is limited to Hurst-induced Caldwell claims
against Standard Jury Instruction 7.11. Obviously, this opinion does not affect
proper Caldwell challenges.


                                        - 33 -
accurately described the jury’s role as advisory, would ignore Romano while

allowing Caldwell claims to swallow retroactivity whole. Such a holding, in

effect, would make Hurst completely retroactive purely because the pre-Hurst

standard jury instruction did not—and could not—reflect Hurst. This outcome

would effectively add a fourth prong to the Witt20 retroactivity test that we

employed in Mosley and Asay: whether the jury instructions given accurately

predicted the change in law. See Mosley, 209 So. 3d at 1276-83; Asay, 210 So. 3d

at 15-22. As already explained, the result advanced by Reynolds becomes

particularly circuitous when applied to pre-Ring Caldwell claims. See supra p. 25.

Hurst does not apply to pre-Ring cases. E.g., Hitchcock, 226 So. 3d at 217. Thus,

the rights announced in Hurst are inapplicable pre-Ring. Id. Regardless, as the

argument goes, even pre-Ring juries were being misled as to their responsibility in

sentencing notwithstanding the fact that such a responsibility did not exist then and

does not exist retroactively. This is the exact unwieldiness of Caldwell that

Romano averts. Either juries were being misled or they were not. We conclude

that they were not.

      Finally, these Hurst-induced Caldwell claims rest upon a simple, albeit

conclusory, premise which Reynolds clearly stated: “The chances that at least one




      20. Witt v. State, 387 So. 2d 922 (Fla. 1980).


                                        - 34 -
juror would not join a death recommendation if a resentencing were now

conducted are likely given that proper Caldwell instructions would be required”;

thus, the unanimous recommendation does not meet the Eighth Amendment’s

reliability requirement. To be sure, this notion is unsubstantiated. But it is further

weakened by the fact that juror unanimity was not required under Florida’s

previous death scheme, so a converse argument could be made. Any juror that had

any doubt whatsoever could vote for a life sentence without feeling any

responsibility for leniency towards the individual found guilty of first-degree

murder. Of course, under the previous scheme, the other jurors who voted for

death had no incentive to pressure a holdout juror because only a bare majority was

required. Before Hurst, jurors had various options for recommendations, including

life, 7-to-5 death, 8-to-4 death, 9-to-3 death, 10-to-2 death, 11-to-1 death, and

unanimous death outcomes. Now, the sentencing verdict is binary—life or death.

Therefore, cases that previously received nonunanimous death recommendations

may become unanimous death verdicts. This has already occurred. On March 23,

2017, we granted Hurst relief due to an eight-to-four death jury recommendation,

sending Randall Deviney back for resentencing. Deviney v. State, 213 So. 3d 794,

794-95 (Fla. 2017). Deviney has already been resentenced to death by a




                                        - 35 -
unanimous jury verdict.21 Plainly, the entire rationale beneath these Hurst-induced

Caldwell claims is on uneven footing. We assume that jurors will follow the

instructions given to them. Crain v. State, 894 So. 2d 59, 70 (Fla. 2004).

Accordingly, we will not guess at whether or not individual jurors before Hurst

were voting for the death of another person haphazardly after being instructed by

the trial court not to “act hastily or without due regard to the gravity of these

proceedings” and to realize “that a human life is at stake.” See Fla. Std. Jury Instr.

(Crim.) 7.11.

      Accordingly, we conclude that Hurst-induced Caldwell claims against the

standard jury instruction do not provide an avenue for Hurst relief.

                                       This Case

      Based on the foregoing, we conclude that the circuit court properly denied

Reynolds’s Eighth Amendment Caldwell claim. Reynolds received Standard Jury

Instruction 7.11, and his jury was not misled as to its role in sentencing. See

Romano, 512 U.S. at 9. Although not necessary, further supporting our conclusion

is the fact that the trial court gave a Tedder instruction, stating that it could reverse

the jury recommendation “only if the facts [were] so clear and convincing that




      21. Man Gets Death Sentence Again for Killing Neighbor, Chi. Trib., Oct.
14, 2017, http://www.chicagotribune.com/news/sns-bc-fl--death-penalty-hearing-
20171014-story.html.


                                          - 36 -
virtually no reasonable person could differ.” See Tedder, 322 So. 2d at 910. In

accordance with our general holding pertaining to Hurst-induced Caldwell claims

and the actual jury instructions given to Reynolds’s jury, we can conclude beyond

a reasonable doubt that the jury was properly instructed under the existing law in a

manner that underscored “their power to determine the appropriateness of death as

an ‘awesome responsibility.’ ” See Caldwell, 472 U.S. at 330 (quoting Woodson v.

North Carolina, 428 U.S. 280, 320 (1976)).

                                 CONCLUSION

      Accordingly, we affirm the circuit court’s denial of Reynolds’s motion for

postconviction relief.

      It is so ordered.

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

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

LAWSON, J., concurring specially.

      I concur in the majority’s decision. See Okafor v. State, 225 So. 3d 768,

775-76 (Fla. 2017) (Lawson, J., concurring specially). I write briefly, however, to

explain why I disagree with the majority’s characterization of Hurst v. State, 202

So. 3d 40 (Fla. 2016), cert. denied, 137 S. Ct. 2161 (2017), as being compelled by

                                       - 37 -
or grounded in the Eighth Amendment’s prohibition on cruel and unusual

punishment and why the majority is wrong to view Reynolds’ Eighth Amendment

claim pursuant to Caldwell v. Mississippi, 472 U.S. 320 (1985), through the lens of

Hurst.

         Florida’s Constitution unambiguously mandates that this Court interpret

“[t]he prohibition against cruel or unusual punishment, and the prohibition against

cruel and unusual punishment . . . in conformity with the decisions of the United

States Supreme Court,” art. I, § 17, Fla. Const., which has held that the Eighth

Amendment does not require jury sentencing in capital cases. See Spaziano v.

Florida, 468 U.S. 447, 464-65 (1984), overruled on other grounds by Hurst v.

Florida, 136 S. Ct. 616, 624 (2016) (overruling Spaziano on Sixth Amendment

grounds to the extent it “allow[s] a sentencing judge to find an aggravating

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

of the death penalty”).

         In light of Spaziano, a faithful application of the Florida Constitution

prohibits grounding Hurst in the Eighth Amendment and, therefore, necessarily

prohibits using Hurst to create the Caldwell Eighth Amendment capital sentencing

problem that the majority opinion purports to solve. See majority op. at 14-37.

Because the “Hurst-induced Caldwell claim” coined by the majority is not

cognizable as a matter of law, analyzing a procedurally barred Caldwell claim in


                                           - 38 -
light of Hurst is not an exercise that I would—or that this Court should—

undertake. See also Owen v. State, 773 So. 2d 510, 515 n.11 (Fla. 2000) (“[T]his

Court has repeatedly held that Caldwell errors cannot be raised on collateral

review.”).

PARIENTE, J., dissenting.

      For the reasons fully explained in my dissenting opinion in Grim v. State,

No. SC17-1071 (slip op. Fla. Mar. 29, 2018), at 3-11, because the jury did not hear

any evidence of mitigation, I would conclude that this Court cannot rely on the

jury’s unanimous recommendations for death in Reynolds’ case to determine that

the Hurst22 error is harmless beyond a reasonable doubt. Per curiam op. at 14.

Because Hurst applies retroactively to Reynolds’ sentences of death, which

became final in 2007, the dispositive issue in this case is whether the Hurst error is

harmless beyond a reasonable doubt. Hurst, 202 So. 3d at 68-69; see Mosley v.

State, 209 So. 3d 1248, 1283-84 (Fla. 2016); Davis v. State, 207 So. 3d 142, 174-

75 (Fla. 2016). I also write to explain that Reynolds’ Caldwell23 claim, brought in

light of Hurst, has merit because the jury instructions used in Reynolds’ trial

misled the jury as to its role in capital sentencing.



      22. Hurst v. State (Hurst), 202 So. 3d 40 (Fla. 2016), cert. denied, 137 S.
Ct. 2161 (2017); see Hurst v. Florida, 136 S. Ct. 616 (2016).

      23. Caldwell v. Mississippi, 472 U.S. 320 (1985).

                                         - 39 -
      Whether the Hurst Error Is Harmless Beyond a Reasonable Doubt

      After being convicted of two counts of first-degree murder, Reynolds

“waived his right to present mitigating evidence.” Reynolds v. State (Reynolds I),

934 So. 2d 1128, 1138 (Fla. 2006); see per curiam op. at 2. As the per curiam

opinion explains, “[t]rial counsel swore in an affidavit that Reynolds waived

mitigation, ‘at least in part, because he did not think there was any chance of

convincing six jurors to vote for life, and did not want to subject his sisters to the

stress of testifying before a jury.’ ” Per curiam op. at 2-3. After hearing only

evidence of aggravation, the penalty phase jury “returned unanimous

recommendations of death for both first-degree murder convictions.” Reynolds I,

934 So. 2d at 1138.

      After the penalty phase, the trial court held a Spencer24 hearing, where “the

sole testimony presented by the defense was the testimony of Reynolds himself.

The State did not present any testimony, relying solely on the evidence and

testimony admitted during the guilt and penalty phase trials as support for the

aggravating factors.” Reynolds I, 934 So. 2d at 1138. Acknowledging Reynolds’

mitigation waiver, the trial court determined that the aggravating factors




      24. Spencer v. State, 615 So. 2d 688 (Fla. 1993).


                                         - 40 -
outweighed the mitigation and sentenced Reynolds to death for both first-degree

murder convictions. Id.25

      As to the mitigation that the jury did not hear before making its sentencing

recommendations, the trial court found the following statutory mitigating

circumstances for both murders: (1) Reynolds was gainfully employed; (2)

Reynolds manifested appropriate courtroom behavior throughout trial; (3)

Reynolds cooperated with law enforcement; and, (4) Reynolds had a difficult

childhood. Id. at 1138-39; see per curiam op. at 4. In finding that Reynolds had a

difficult childhood, the trial court noted that Reynolds “suffered from an

upbringing marked by physical and psychological abuse”; his “father was a chronic

alcoholic”; his “mother was chronically ill and was often hospitalized during [his]



       25. The trial court found the following aggravating factors for the murder of
Robin Razor and assigned them the noted weight: (1) Reynolds had previously
been convicted of a another capital felony or a felony involving a threat of violence
to the person (PVF) (great weight); (2) Reynolds committed the murder while he
was engaged in or was an accomplice in the commission of or an attempt to
commit a burglary of a dwelling (great weight); (3) the murder was committed for
the purpose of avoiding a lawful arrest (great weight); and (4) the murder was
committed in an especially heinous, atrocious, or cruel fashion (HAC) (great
weight). Reynolds I, 934 So. 2d at 1138.
       For the murder of Christina Razor, the trial court the following five
aggravating factors and assigned them the noted weight: (1) PVF (great weight);
(2) Reynolds committed the murder while he was engaged in or was an accomplice
in the commission of or an attempt to commit a burglary of a dwelling (great
weight); (3) the murder was committed for the purpose of avoiding a lawful arrest
(great weight); (4) HAC (great weight); and (5) the victim of the murder was a
person less than 12 years of age (great weight). Id.

                                       - 41 -
childhood”; Reynolds “was regularly hit, slapped and kicked by his drunken father,

without warning”; his father would sometimes pour ice water on him in the middle

of the night; Reynolds “regularly cared for his disabled, wheelchair-bound sister

because his mother was unable to do so”; he “helped run household affairs around

the home”; his mother died when he was 17 years old; his education was limited to

the tenth grade; Reynolds began using alcohol at the age of 14; and, he “had

essentially no adult supervision as a child.” Second Am. Sentencing Order (“SO”),

at 14-15, 26-27.

      Pursuant to this Court’s opinion in Muhammad v. State, 782 So. 2d 343,

361-62 (Fla. 2001), the trial court in this case properly did “not give the

recommendation[s] of the jury great weight.” SO, at 16; see per curiam op. at 4.

However, as I fully explained in my dissenting opinion in Grim, this does not

overcome the Hurst error—the absence of a unanimous jury finding that the

aggravation in Reynolds’ case outweighed the mitigation. See Hurst, 202 So. 3d at

44.

      Significantly, Florida’s pre-Hurst capital sentencing scheme, which required

only seven jurors to recommend a sentence of death, guided Reynolds’ calculation

for waiving mitigation. Per curiam op. at 2-3. However, we now know that the

United States and Florida Constitutions require all twelve jurors to vote for death.

Hurst, 202 So. 3d at 44. Therefore, Reynolds’ calculation for waiving the right to


                                        - 42 -
present evidence of mitigation to the jury would be starkly different in proceedings

guided by our post-Hurst capital sentencing statute—requiring only one juror to

vote for life. See Kaczmar v. State, 228 So. 3d 1, 16 (Fla. 2017) (Pariente, J.,

concurring in part and dissenting in part); see also § 921.141, Fla. Stat. (2017).

Thus, in light of Reynolds’ mitigation waiver, I cannot rely on the jury’s

uninformed, albeit unanimous, recommendations for death to determine that the

Hurst error is harmless beyond a reasonable doubt.

         Next, I turn to address the per curiam opinion’s discussion of Reynolds’

claim to a right to relief under Hurst pursuant to the United States Supreme Court’s

decision in Caldwell v. Mississippi, 472 U.S. 320 (1985)—what the per curiam

opinion labels a “Hurst-induced Caldwell claim.” Per curiam op. at 15; see

concurring specially op. at 38 (Lawson, J.). As the per curiam opinion

acknowledges, although this claim has been raised by numerous defendants, this

Court has not “expressly addressed” the merits of this claim. Per curiam op. at 14

& n.8.

                                    Caldwell Claim

         This Court made clear in Hurst, which is now final, that, in addition to the

constitutional requirements of the Sixth Amendment, “juror unanimity in any

recommended verdict resulting in a death sentence is required under the Eighth

Amendment.” 202 So. 3d at 59. Hurst also provided the constitutional


                                          - 43 -
requirements for imposing capital sentences in a manner that is not arbitrary and

furthers the “narrowing function required by the Eighth Amendment.” Id. at 60.

Therefore, contrary to both the per curiam opinion and Justice Lawson’s

concurring specially opinion, I would conclude that Reynolds’ Caldwell claim is

valid. Cf. concurring specially op. at 37-38 (Lawson, J.).

      In Caldwell, the United States Supreme Court held that it is “constitutionally

impermissible to rest a death sentence on a determination made by a sentencer who

has been led to believe that the responsibility for determining the appropriateness

of the defendant’s death rests elsewhere.” 472 U.S. at 328-29 (emphasis added).

As to the pre-Hurst jury instructions, I explained in Hamilton v. State, 43 Fla. L.

Weekly S82 (Fla. Feb. 8, 2018):

             Florida’s pre-Hurst jury instructions referred to the advisory
      nature of the jury’s recommendation over a dozen times. Further, the
      jury was only required to make a recommendation between life or
      death to the trial court, which then held the ultimate responsibility of
      making the requisite factual findings and determining the appropriate
      sentence. Thus, it was made abundantly clear to the jury that they
      were not responsible for rendering the final sentencing decision.

Id. at S84 (Pariente, J., dissenting) (citations omitted). Similar to how a majority

of this Court denied the applicability of Ring v. Arizona, 536 U.S. 584 (2002), to

Florida’s capital sentencing scheme,26 this Court consistently determined that



      26. See Bottoson v. Moore, 833 So. 2d 693, 695 (Fla. 2002); King v. Moore,
831 So. 2d 143, 144-45 (Fla. 2002).

                                        - 44 -
Caldwell did not compromise the validity of Florida’s jury instructions—even after

Ring. Per curiam op. at 19-24.

      However, if Florida’s capital sentencing scheme was invalid from the point

that the United States Supreme Court decided Ring, as the United States Supreme

Court made clear in Hurst v. Florida, 136 S. Ct. at 622, and this Court’s

retroactivity analyses confirm,27 it is difficult to understand how Florida’s standard

jury instructions, following an unconstitutional statute, did not also create

constitutional error. See per curiam op. at 28 & n.15. Indeed, in a concurring in

result only opinion in Bottoson v. Moore, 833 So. 2d 693 (Fla. 2002), Justice Lewis

argued that, “in light of the dictates of Ring v. Arizona, it necessarily follows that

Florida’s standard penalty phase jury instructions may no longer be valid and are

certainly subject to further analysis under” Caldwell. Bottoson, 833 So. 2d at 731

(Lewis, J., concurring in result only). Justice Lewis explained:

      [I]n light of the decision in Ring v. Arizona, it is necessary to
      reevaluate both the validity, and, if valid, the wording of [Florida’s
      standard capital] jury instructions. The United States Supreme Court
      has defined the reach of Caldwell by stating that “Caldwell is relevant
      only to certain types of comment—those that mislead the jury as to its
      role in the sentencing process in a way that allows the jury to feel less
      responsible than it should for the sentencing decision.” Darden v.
      Wainwright, 477 U.S. 168 (1986). . . . Clearly, under Ring, the jury
      plays a vital role in the determination of a capital defendant’s sentence
      through the determination of aggravating factors. However, under
      Florida’s standard penalty phase jury instructions, the role of the jury

      27. See Asay v. State (Asay V), 210 So. 3d 1, 15-22 (Fla. 2016), cert. denied,
138 S. Ct. 41 (2017); Mosley, 209 So. 3d at 1276-83.

                                         - 45 -
      is minimized, rather than emphasized, as is the necessary implication
      to be drawn from Ring.
              Under Florida’s standard penalty phase jury instructions, the
      jury is told, even before evidence is presented in the penalty phase,
      that its sentence is only advisory and the judge is the final
      decisionmaker. The words “advise” and “advisory” are used more
      than ten times in the instructions, while the members of the jury are
      only told once that they must find the aggravating factors beyond a
      reasonable doubt. The jury is also instructed several times that its
      sentence is simply a recommendation. By highlighting the jury’s
      advisory role, and minimizing its duty under Ring to find the
      aggravating factors, Florida’s standard penalty phase jury
      instructions must certainly be reevaluated under [Caldwell].
              Just as the high Court stated in Caldwell, Florida’s standard
      jury instructions “minimize the jury’s sense of responsibility for
      determining the appropriateness of death.” Caldwell, 472 U.S. at 341.
      Ring clearly requires that the jury play a vital role in determining the
      factors upon which the sentencing will depend, and Florida’s jury
      instructions tend to diminish that role and could lead the jury
      members to believe they are less responsible for a death sentence than
      they actually are.

Id. at 732-33 (emphasis added) (citations omitted).

      Of course, Hurst v. Florida held that Florida’s existing capital sentencing

law was unconstitutional under Ring, and the jury’s proper role in capital

sentencing is far more significant than the pre-Hurst statutory scheme and jury

instructions provided. See Hurst v. Florida, 136 S. Ct. at 622. It follows that the

jury instructions following the unconstitutional scheme, which minimized the

jury’s role in capital sentencing, were likewise deficient.

      Not only was the jury in Reynolds’ case apprised only of information that

aggravated Reynolds’ crime, the jury was repeatedly told that its sentencing


                                        - 46 -
recommendation between life and death was merely “advisory.” In fact, in

instructing the jury, the trial judge explicitly stated that “the final decision as to

what punishment shall be imposed is the responsibility of the judge.” Per curiam

op. at 3. Therefore, because Hurst applies retroactively to Reynolds’ sentence of

death, I would conclude that Caldwell further supports the conclusion that the

Hurst error in Reynolds’ case is not harmless beyond a reasonable doubt.

                                      Conclusion

      The greatest concern in capital sentencing is ensuring that the death penalty

is not imposed arbitrarily or capriciously. For all the reasons explained above, I

cannot conclude that the Hurst error in Reynolds’ case is harmless beyond a

reasonable doubt. Thus, I would grant Reynolds a new penalty phase.

      Accordingly, I dissent.

QUINCE, J., dissenting.

      As I have stated previously, “[b]ecause Hurst requires ‘a jury, not a judge, to

find each fact necessary to impose a sentence of death,’ the error cannot be

harmless where such a factual determination was not made.” Hall v. State, 212 So.

3d 1001, 1036-37 (Fla. 2017) (Quince, J., concurring in part and dissenting in part)

(citation omitted) (quoting Hurst v. Florida, 136 S. Ct. 616, 619 (2016)). I am

even more troubled in a case such as this one, where the defendant waived his right




                                          - 47 -
to present mitigation to avoid subjecting his sisters to the stress of testifying when

he felt it was highly unlikely he would convince six jurors to vote for life.

I agree with Justice Pariente’s viewpoint that our Hurst jurisprudence affects a

defendant’s calculus in determining whether to present mitigation. I accordingly

cannot agree with the majority that the Hurst error in this case is harmless beyond

a reasonable doubt. Accordingly, I dissent.

An Appeal from the Circuit Court in and for Seminole County,
     Kenneth R. Lester, Jr., Judge - Case No. 591998CF003341A000XX

James Vincent Viggiano, Jr., Capital Collateral Regional Counsel, Julissa R.
Fontán, Maria E. DeLiberato, and Chelsea Shirley, Assistant Capital Collateral
Regional Counsel, Middle Region, Temple Terrace, Florida,

      for Appellant

Pamela Jo Bondi, Attorney General, Tallahassee, Florida, and Doris Meacham,
Assistant Attorney General, Daytona Beach, Florida,

      for Appellee




                                         - 48 -
