          Supreme Court of Florida
                                  ____________

                                  No. SC17-1285
                                  ____________

                              TROY VICTORINO,
                                  Appellant,

                                         vs.

                             STATE OF FLORIDA,
                                  Appellee.

                                  [March 8, 2018]

PER CURIAM.

      Troy Victorino, a prisoner under sentences of death, appeals the portions of

the postconviction court’s order denying in part his successive motion for

postconviction relief, which was filed under Florida Rule of Criminal Procedure

3.851. We have jurisdiction. See art. V, § 3(b)(1), Fla. Const.

                               I. BACKGROUND

      On July 25, 2006, after a jury trial, Victorino was found guilty of the

following crimes: one count of conspiracy to commit aggravated battery, murder,

armed burglary of a dwelling, and tampering with physical evidence; six counts of

first-degree murder of victims Erin Belanger, Francisco Ayo Roman, Jonathon W.
Gleason, Roberto Manuel Gonzalez, Michelle Ann Nathan, and Anthony Vega;

one count of abuse of a dead human body with a weapon; one count of armed

burglary of a dwelling; and one count of cruelty to animals. After the penalty

phase, the jury returned a recommendation that Victorino be sentenced to death for

the murders of Erin Belanger (by a vote of ten to two), Francisco Ayo Roman (by a

vote of ten to two), Jonathon W. Gleason (by a vote of seven to five), and Roberto

Manuel Gonzalez (by a vote of nine to three), and to life imprisonment for the

murders of Michelle Ann Nathan and Anthony Vega. The trial court followed the

jury’s recommendation and imposed four death sentences on Victorino.

      We affirmed Victorino’s convictions and death sentences on direct appeal.

Victorino v. State, 23 So. 3d 87 (Fla. 2009). We thereafter affirmed the denial of

Victorino’s initial motion for postconviction relief and denied his petition for a

writ of habeas corpus. Victorino v. State, 127 So. 3d 478 (Fla. 2013).

      Following the United States Supreme Court’s decision in Hurst v. Florida,

136 S. Ct. 616 (2016), and this Court’s decisions in Hurst v. State, 202 So. 3d 40

(Fla. 2016), cert. denied, 137 S. Ct. 2161 (2017), and Mosley v. State, 209 So. 3d

1248 (Fla. 2016), Victorino filed a successive postconviction motion. The

postconviction court granted Victorino’s motion in part, ordering that Victorino’s

death sentences be vacated and a new penalty phase be held in light of the Hurst

and Mosley decisions. But the postconviction court denied the portions of


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Victorino’s motion in which he argued that he was entitled to be resentenced to life

imprisonment based on section 775.082(2), Florida Statutes, the prohibition against

double jeopardy, and the prohibition against ex post facto laws. Victorino now

appeals the portions of the postconviction court’s order denying in part his

successive motion.

                                  II. ANALYSIS

                     A. Section 775.082(2), Florida Statutes

      Victorino concedes we have already ruled in Hurst v. State and Franklin v.

State, 209 So. 3d 1241 (Fla. 2016), that section 775.082(2)1 does not require death

sentences imposed in violation of Hurst v. Florida to be commuted to life.

Nonetheless, Victorino urges us to reconsider our interpretation of section

775.082(2) in light of the fact that his case involves a mass murder and four death

sentences. Victorino asserts that under these circumstances a new penalty phase




      1. Section 775.082(2) provides:

      In the event the death penalty in a capital felony is held to be
      unconstitutional by the Florida Supreme Court or the United States
      Supreme Court, the court having jurisdiction over a person previously
      sentenced to death for a capital felony shall cause such person to be
      brought before the court, and the court shall sentence such person to
      life imprisonment as provided in subsection (1). No sentence of death
      shall be reduced as a result of a determination that a method of
      execution is held to be unconstitutional under the State Constitution or
      the Constitution of the United States.


                                        -3-
would be especially time consuming and costly and therefore it would be

reasonable for us to construe section 775.082(2) in a way that would require his

death sentences to be commuted to life sentences. We find Victorino’s suggestion

that we reconsider our interpretation of section 755.082(2) based on the facts of his

case unpersuasive and conclude that section 775.082(2) does not entitle Victorino

to be resentenced to life imprisonment.

                  B. The Prohibition Against Double Jeopardy

      Victorino next argues that because none of the four jury recommendations

for the death penalty in his case were unanimous, he was “acquitted” of the death

penalty and therefore subjecting him to a new penalty phase, in which he will again

be eligible for the death penalty, violates the prohibition against double jeopardy.

This claim is meritless. The Hurst decisions do not “acquit” Victorino of his four

death sentences. As the United States Supreme Court discussed in Sattazahn v.

Pennsylvania, 537 U.S. 101, 114 (2003), a retrial of a capital defendant does not

implicate double jeopardy, stating, “[n]or, in these circumstances, does the

prospect of a second capital-sentencing proceeding implicate any of the ‘perils

against which the Double Jeopardy Clause seeks to protect’ ” (citation omitted).

Victorino has not been acquitted of the death penalty or deemed to be an

inappropriate candidate for the death penalty. The postconviction court correctly

applied the law in determining that double jeopardy does not bar a new penalty


                                          -4-
phase in which Victorino will again be eligible for the death penalty. Victorino is

not entitled to relief.

                  C. The Prohibition Against Ex Post Facto Laws

       Victorino argues that to “apply the recent, post-Hurst case law retroactively

to make the Defendant death-eligible would violate the constitutional prohibitions

against ex post facto laws.” Initial Brief of Appellant at 18, Victorino v. State, No.

SC17-1285 (Fla. Sept. 21, 2017). For a criminal law to be ex post facto it must be

retrospective, that is, it must apply to events that occurred before its enactment;

and it must alter the definition of criminal conduct or increase the penalty by which

a crime is punishable. Lynce v. Mathis, 519 U.S. 433, 441 (1997). Florida’s new

capital sentencing scheme, which requires the jury to unanimously and expressly

find all the aggravating factors that were proven beyond a reasonable doubt,

unanimously find that sufficient aggravating factors exist to impose death,

unanimously find that the aggravating factors outweigh the mitigating

circumstances, and unanimously recommend a sentence of death before the trial

judge may consider imposing a sentence of death, see § 921.141(2), Fla. Stat.

(2017), neither alters the definition of criminal conduct nor increases the penalty

by which the crime of first-degree murder is punishable. Thus, it does not

constitute an ex post facto law, and Victorino is therefore not entitled to relief.




                                          -5-
                               III. CONCLUSION

      For these reasons, we affirm the portions of the postconviction court’s order

denying Victorino’s claims that he is entitled to have his death sentences reduced

to life sentences.

      It is so ordered.

LABARGA, C.J., and PARIENTE, LEWIS, QUINCE, CANADY, POLSTON,
and LAWSON, JJ., concur.

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

An Appeal from the Circuit Court in and for Volusia County,
     Randell H. Rowe, III, Judge - Case No. 642004CF001378XXXAWS

Christopher J. Anderson of Law Office of Christopher J. Anderson, Neptune
Beach, Florida,

      for Appellant

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

      for Appellee




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