          Supreme Court of Florida
                                  ____________

                                  No. SC13-819
                                  ____________

                        RODERICK MICHAEL ORME,
                               Appellant,

                                        vs.

                             STATE OF FLORIDA,
                                  Appellee.

                                  ____________

                                   No. SC14-22
                                  ____________

                        RODERICK MICHAEL ORME,
                               Petitioner,

                                        vs.

                             JULIE L. JONES, etc.,
                                 Respondent.

                               [March 30, 2017]
                              REVISED OPINION

PER CURIAM.

      Roderick Michael Orme appeals an order of the circuit court denying his

motion to vacate his sentence of death, filed under Florida Rule of Criminal

Procedure 3.851, and he petitions this Court for a writ of habeas corpus. We have
jurisdiction. See art. V, § 3(b)(1), (9), Fla. Const. For the reasons that follow, we

grant Orme a new penalty phase based on the United States Supreme Court’s

decision in Hurst v. Florida, 136 S. Ct. 616 (2016), as interpreted by our decision

in Hurst v. State, 202 So. 3d 40 (Fla. 2016), petition for cert. filed, No. 16-998

(U.S. Feb. 13, 2017).1

                    FACTS AND PROCEDURAL HISTORY

      A full description of the facts of the instant case can be found in our opinion

from Orme’s direct appeal. Orme v. State (Orme I), 677 So. 2d 258, 260-61 (Fla.

1996). The facts relevant here are as follows. In March 1992, Orme was charged

with premeditated or felony murder, robbery, and sexual battery in connection with

the death of Lisa Redd, whose body was found in Orme’s motel room. Id. at 260.

A jury convicted Orme on all three counts and recommended the death penalty by

a vote of seven to five. Id. at 261. The trial judge followed the recommendation

and sentenced Orme to death, finding three aggravating factors—committed during

the course of a sexual battery; heinous, atrocious, or cruel (HAC); and committed

for pecuniary gain. Id. In mitigation, the judge found both statutory mental health

mitigators (substantial impairment and extreme emotional disturbance), giving



      1. We previously issued a decision in this case on December 10, 2015.
While Orme’s rehearing was pending, we granted his motion to permit
supplemental briefing. We withdraw our previous opinion and replace it with this
opinion.


                                         -2-
them “some weight.” Id. We have previously described the procedural history of

this case as follows:

      On direct appeal, Orme raised eight issues. [n.1] This Court affirmed
      Orme’s conviction of first-degree murder and the sentence of death.
      [Orme I, 677 So. 2d at 261-64.] Orme filed a petition for writ of
      certiorari with the United States Supreme Court. That Court denied
      review on January 13, 1997. Orme v. Florida, 519 U.S. 1079 (1997).

             [N.1] The following issues were raised: (1) the trial court
             should have directed a judgment of acquittal on grounds
             the case against him was circumstantial and the State had
             failed to disprove all reasonable hypotheses of innocence;
             (2) Orme’s statements to officers should have been
             suppressed on grounds he was too intoxicated with drugs
             to knowingly and voluntarily waive his right to silence;
             (3) death is not a proportionate penalty because Orme’s
             will was overborne by drug abuse, and because any fight
             between the victim and him was a “lover’s quarrel”; (4)
             Orme’s mental state at the time of the murder was such
             that he could not form a “design” to inflict a high degree
             of suffering on the victim; (5) the trial court erred by
             failing to weigh in mitigation the fact that Orme had no
             significant prior criminal history; (6) the trial court erred
             in declining to give a special instruction that acts
             perpetrated on the victim after her death are not relevant
             to [the HAC aggravato]r; (7) the instruction on [HAC]
             violated the dictates of Espinosa v. Florida, 505 U.S.
             1079 (1992); and (8) Orme was incapable of forming the
             specific intent necessary for first-degree murder and this
             fact bars his death sentence under Enmund v. Florida,
             458 U.S. 782 (1982).

             Subsequently, Orme filed an amended motion for
      postconviction relief pursuant to Florida Rule of Criminal Procedure
      3.851, raising twenty-five claims. After an evidentiary hearing on
      four claims of ineffective assistance of trial counsel, the trial court
      denied relief. Orme appealed the denial of postconviction relief to
      this Court, raising three claims. [n.2] He also petitioned the Court for

                                         -3-
a writ of habeas corpus, raising eight claims. [n.3] See [Orme v. State
(Orme II), 896 So. 2d 725, 737 (Fla. 2005)]. This Court found
defense counsel ineffective for failing to further investigate Orme’s
diagnosis of bipolar disorder with respect to the penalty phase. As a
result, a new penalty phase was ordered. Id. [at 740-41].

      [N.2] Orme argued that (1) the trial court erred in
      denying his ineffective assistance of counsel claim for
      trial counsel’s failure to present evidence of Orme’s
      diagnosis of bipolar disorder; (2) his death sentence is
      unconstitutional pursuant to Ring v. Arizona, 536 U.S.
      584 (2002), and its progeny; and (3) the general jury
      qualifications procedure in Bay County, where he was
      tried, was unconstitutional. [Orme II], 896 So. 2d 725
      (Fla. 2005).

      [N.3] Three of the claims Orme raised were: (1)
      appellate counsel was ineffective for failing to raise on
      appeal the fact that Orme was involuntarily absent from
      two bench conferences, which he claims were critical
      stages of his trial; (2) appellate counsel was ineffective
      for failing to raise on appeal the claim that the prosecutor
      engaged in misconduct rendering the conviction and
      sentence fundamentally unfair; and (3) appellate counsel
      was ineffective for failing to raise on appeal the claim
      that the trial court erroneously allowed forty-three
      gruesome photographs to be shown to the jury. Orme
      raised five additional claims, all of which were found not
      to be properly raised in a habeas proceeding because they
      were either raised on direct appeal or in postconviction or
      should have been raised and were therefore procedurally
      barred. [Orme II, 896 So. 2d at 740].

       In May 2007, a new penalty phase was conducted before a new
jury, but before the original trial judge. By a vote of eleven to one,
the new jury recommended a death sentence. The trial court followed
the jury’s recommendation and sentenced Orme to death. The trial
court found the following three statutory aggravating factors: (1) the
capital felony was committed for pecuniary gain; (2) the capital felony
was committed while the defendant was engaged in the commission

                                 -4-
      of, or an attempt to commit, or flight after committing or attempting to
      commit a sexual battery; and (3) the capital felony was especially
      heinous, atrocious, or cruel. The trial court also found three statutory
      mitigators: (1) the defendant had no significant criminal history (little
      weight); (2) the capital felony was committed while the defendant was
      under the influence of extreme mental or emotional disturbance (little
      weight); and (3) the capacity of the defendant to appreciate the
      criminality of his conduct or to conform his conduct to the
      requirements of the law was substantially impaired (little weight).
      The trial court also found that the following mitigation was either
      irrelevant to the murder or did not exist and, as a result, gave them no
      weight: (1) the age of the defendant; (2) a bipolar disorder contributed
      significantly to the defendant’s substance abuse; (3) the defendant had
      a difficult childhood; (4) the defendant is a model prisoner; (5) the
      defendant’s potential for rehabilitation; and (6) the defendant tried to
      get the victim help.

Orme v. State (Orme III), 25 So. 3d 536, 542-43 (Fla. 2009).

      At resentencing, Orme was initially represented by Russell Ramey, who was

appointed after the Public Defender’s Office certified to the court a conflict of

interest and moved for appointment of separate counsel. Subsequently, attorneys

Sarah Butters and George Schulz of Holland & Knight, LLP, filed a notice of

appearance as co-counsel to Ramey. However, at a September 7, 2005, hearing,

the trial court informed Butters and Schulz that their pro bono representation of

Orme as co-counsel to Ramey could prompt Ramey’s withdrawal from the case, as

the Justice Administrative Commission (JAC) would not pay for court-appointed

counsel when private counsel had been obtained. Thus, on November 2, 2005,

Butters and Schulz filed a motion for appointment of Michel Stone as co-counsel




                                         -5-
for Orme.2 A hearing was held on the motion on November 7, 2005, and the trial

court conducted a colloquy with Orme, eventually appointing Stone as co-counsel

to Ramey.

      Orme appealed the death sentence he received at resentencing to this Court,

raising nine claims.3 Orme III, 25 So. 3d at 540, 543. We affirmed his sentence,

finding no reversible error. Id. at 543-53. Orme then filed a petition for writ of

certiorari with the United States Supreme Court, which that Court denied on June

7, 2010. Orme v. Florida, 560 U.S. 956 (2010).




        2. Stone had briefly represented Orme before the start of Orme’s original
trial proceedings, when Stone left the Public Defender’s Office to enter private
practice.
       3. The nine claims were that the trial court erred in (1) refusing to allow
Orme to challenge for cause prospective jurors who could not consider remorse as
a mitigator; (2) refusing to allow him to inquire of prospective jurors whether they
could consider recommending a life sentence as a matter of mercy even if the
aggravators outweighed the mitigators; (3) failing to dismiss the venire after one
prospective juror revealed that Orme had a prior conviction; (4) refusing to allow
Orme to waive his right to the sentencing option of life in prison without the
possibility of parole for twenty-five years in favor of a harsher punishment of life
in prison without the possibility of parole; (5) failing to give weight to Orme’s
difficult childhood, the fact that Orme was a model prisoner, Orme’s potential for
rehabilitation, and Orme’s attempt to get the victim help; (6) finding that the
pecuniary gain aggravator applied; (7) finding the HAC aggravator; and (8) finding
that the “murder was committed in the course of a sexual battery” aggravator
applied; and (9) that Orme’s death sentence violated Ring v. Arizona, 536 U.S. 584
(2002). Id. at 543-53.


                                        -6-
      On June 1, 2011, Orme filed the instant motion for postconviction relief,

presenting four claims of ineffective assistance of counsel—that resentencing

phase counsel rendered ineffective assistance by (1) violating the Sixth, Eighth,

and Fourteenth Amendments; (2) failing to object to the prosecutor’s improper

arguments at resentencing; (3) failing to preserve the trial court’s error in holding

that a juror’s refusal to consider remorse as a mitigator could only be a basis for a

peremptory challenge; and (4) failing to preserve the issue of the jury’s

consideration of mercy in making its sentencing recommendation. He also raises

two additional claims: that rules prohibiting Orme’s lawyers from interviewing

jurors to discover constitutional error violate Orme’s constitutional rights and that

Orme’s death sentence violates the Eighth Amendment. The State filed its

response on July 26, 2011. The postconviction court granted an evidentiary

hearing on Orme’s first claim only. The hearing began on April 30, 2012. On

March 1, 2013, the court entered an order denying all of Orme’s postconviction

claims.

      Orme now appeals the denial of his motion, raising four claims of ineffective

assistance of resentencing phase counsel4 and one claim of ineffective assistance of


      4. These claims are the same as the first four claims presented to the
postconviction court in Orme’s motion below—that resentencing phase counsel
rendered ineffective assistance by (1) violating the Sixth, Eighth, and Fourteenth
Amendments; (2) failing to object to the prosecutor’s improper arguments at
resentencing; (3) failing to preserve the trial court’s error in holding that a juror’s

                                          -7-
postconviction counsel. Orme also petitions this Court for a writ of habeas corpus,

alleging that appellate counsel rendered ineffective assistance by failing to raise the

following issues on appeal from the resentencing: (1) the use of restraints on Orme

during resentencing; (2) the State’s participation in privileged discussions and

communications of defense counsel in violation of the Equal Protection Clause;

and (3) improper arguments by the prosecutor at resentencing.

                                    ANALYSIS

      Because Orme’s claims all relate to his resentencing and we determine that

Orme is entitled to relief pursuant to Hurst, we do not address his other

postconviction claims or the issues raised in his petition for a writ of habeas

corpus.

                               Hurst v. Florida and Hurst

      In Hurst v. Florida, the United States Supreme Court declared our capital

sentencing scheme unconstitutional because “[t]he 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.” Hurst v. Florida, 136 S. Ct. at 619.

Pursuant to the Supreme Court’s decision in Hurst v. Florida, Orme filed a motion




refusal to consider remorse as a mitigator could only be a basis for a peremptory
challenge; and (4) failing to preserve the issue of the jury’s consideration of mercy
in making its sentencing recommendation.


                                         -8-
to permit supplemental briefing. We granted the motion, and Orme now contends

that he is entitled to relief under Hurst v. Florida because of his eleven-to-one jury

vote recommending death. On remand from the United States Supreme Court we

held that the jury must unanimously find the existence of each aggravating factor

beyond a reasonable doubt, must unanimously find the aggravating factors are

sufficient, and must unanimously find that the aggravating factors outweigh the

mitigating circumstances. Hurst, 202 So. 3d at 53-54.

      Thereafter, in Mosley v. State, 41 Fla. L. Weekly S629, 2016 WL 7406506

(Fla. Dec. 22, 2016), we determined that Hurst v. Florida and Hurst apply

retroactively to defendants, like Orme, whose sentences were not yet final when

the Supreme Court issued Ring. See Mosley, 2016 WL 7406506 at *25.

      Because we conclude that Hurst applies to Orme, we next examine whether

any Hurst error was harmless beyond a reasonable doubt. On remand from the

United States Supreme Court, in Hurst we explained the appropriate standard for

harmless error review:

      Where the error concerns sentencing, the error is harmless only if
      there is no reasonable possibility that the error contributed to the
      sentence. See, e.g., Zack v. State, 753 So. 2d 9, 20 (Fla. 2000).
      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,” [State v.] DiGuilio, 491 So. 2d
      [1129,] 1137 [Fla. 1986], 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

                                         -9-
      jury’s failure to unanimously find all the facts necessary for
      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.

      DiGuilio, 491 So. 2d at 1139. “The question is whether there is a
      reasonable possibility that the error affected the [sentence].” Id.

Hurst, 202 So. 3d at 68 (alteration in original). As applied to the right to a jury

trial with regard to the facts necessary to impose the death penalty, it must be clear

beyond a reasonable doubt that a rational jury would have unanimously found all

facts necessary to impose death and that death was the appropriate sentence.

      Given the jury vote of eleven to one, it is impossible for this Court to

determine which, if any, of the aggravators5 the jury would have found

unanimously if properly instructed. Moreover, we cannot determine whether the

jury would have found “that there were sufficient aggravating factors to outweigh




       5. The trial court found three aggravating factors: (1) the capital felony was
committed for pecuniary gain; (2) the capital felony was committed while the
defendant was engaged in the commission of, or an attempt to commit, or flight
after committing or attempting to commit a sexual battery; and (3) the capital
felony was especially heinous, atrocious, or cruel. Orme II, 25 So. 3d at 542-43.


                                         - 10 -
the mitigating circumstances.” Id. Accordingly, we cannot conclude that the Hurst

error in this case was harmless beyond a reasonable doubt.

                                    CONCLUSION

         Based on the foregoing, we grant Orme’s supplemental claim for relief

under Hurst and vacate his death sentence and remand this case for a new penalty

phase.

         It is so ordered.

LABARGA, C.J., and PARIENTE, LEWIS, and QUINCE, JJ., concur.
CANADY and POLSTON, JJ., dissent.
LAWSON, J., did not participate.

NO MOTION FOR REHEARING WILL BE ALLOWED.

An Appeal from the Circuit Court in and for Bay County,
     Brantley Scott Clark, Jr., Judge - Case No. 031992CF000442XXAXMX
And an Original Proceeding – Habeas Corpus

Linda McDermott of McClain & McDermott, P.A., Estero, Florida,

         for Appellant/Petitioner

Pamela Jo Bondi, Attorney General, and Jennifer L. Keegan, Assistant Attorney
General, Tallahassee, Florida,

         for Appellee/Respondent




                                        - 11 -
