          Supreme Court of Florida
                                    ____________

                                   No. SC16-1032
                                   ____________

                         ERIESE ALPHONSO TISDALE,
                                  Appellant,

                                          vs.

                              STATE OF FLORIDA,
                                   Appellee.

                               November 8, 2018
                             CORRECTED OPINION

PER CURIAM.

      Eriese Alphonso Tisdale was convicted of one count of first-degree murder

of a law enforcement officer, one count of aggravated assault on a law enforcement

officer with a firearm, one count of possession of a firearm by a convicted felon,

and one count of eluding or fleeing a police officer with lights and siren. After the

penalty phase, the jury recommended a sentence of death by a vote of nine to three

on the murder charge and the trial court imposed a death sentence, with lesser

sentences on the other charges. This is Tisdale’s direct appeal, and we have

jurisdiction. See art. V, § 3(b)(1), Fla. Const.
      Tisdale raises no issues relating to his guilt phase trial and we find the

evidence sufficient to support the murder charge. 1 Accordingly, we affirm all

convictions. Tisdale’s only sentencing issues relate to the sentence of death, and

we affirm without discussion the sentences on all lesser convictions. However, we

vacate his death sentence because we cannot conclude that the Hurst 2 error in his

case was harmless beyond a reasonable doubt. Accordingly, we remand his case to

the trial court for a new penalty phase pursuant to Hurst.

                                       FACTS

      On the morning of February 28, 2013, Sergeant Gary Morales of the St.

Lucie County Sheriff’s Office conducted a traffic stop on a vehicle being driven by

Tisdale, a convicted felon. Tisdale, the sole occupant of his vehicle, attempted to

flee as Sergeant Morales radioed for backup and pursued Tisdale. Tisdale stopped

in a residential neighborhood, catching the attention of multiple residents.

Sergeant Morales drove slightly past Tisdale and then came to a sudden stop as

well. As Sergeant Morales backed up his patrol car and opened his driver’s side



    1. Although Tisdale does not contest the sufficiency of the evidence with
respect to any charge, this Court has a mandatory obligation in every capital case
to ensure that the evidence is sufficient to support any murder conviction. Dausch
v. State, 141 So. 3d 513, 517 (Fla. 2014).

   2. Hurst v. State (Hurst), 202 So. 3d 40 (Fla. 2016), cert. denied, 137 S. Ct.
2161 (2017).


                                         -2-
door, Tisdale rapidly exited his vehicle with a drawn handgun, rushed Sergeant

Morales before Morales could leave the seat of his patrol car or access his own

firearm, and fired a burst of shots into the vehicle, hitting Sergeant Morales three

times and killing him. Three eye-witnesses—one police officer and two civilians—

witnessed Tisdale fire the fatal shots. Tisdale then ran back toward his vehicle

while aiming his gun at another police officer who had responded to Sergeant

Morales’ call for backup, jumped back into his vehicle, and continued his flight.

Several officers pursued Tisdale with their lights and sirens activated.

      Eventually, one of the pursuing deputies rammed Tisdale’s vehicle, causing

it to “spin out” and ending the chase. Tisdale was arrested without further incident

at the scene of the collision. Police seized Tisdale’s handgun, used in the shooting,

from the vehicle at the time of his arrest. A forensic biologist testified at trial that

the DNA found on Tisdale’s gun matched DNA samples obtained from Tisdale.

The firearms examiner testified that the seven shell casings recovered from the

area where Tisdale exited his vehicle and ran toward Sergeant Morales’s car had

been fired from Tisdale’s gun. Forensic experts also linked bullets recovered from

Sergeant Morales’s body and vehicle to Tisdale’s gun.

                     RELEVANT PROCEDURAL HISTORY

      Tisdale’s jury returned its guilty verdicts on October 1, 2015. After hearing

evidence bearing on an appropriate sentence, the jury returned its penalty phase


                                          -3-
verdict on October 9, 2015, with nine of the twelve jurors recommending death.

At the time, section 921.141(3), Florida Statutes (2015), authorized a trial judge to

impose a death sentence following a death recommendation by at least seven

jurors. The judge released the jurors from further service immediately after

receiving the penalty phase recommendation.

      The court held a Spencer 3 hearing on November 17, 2015, and then set a

final sentencing for January 15, 2016.

      On January 12, 2016, three days before the scheduled sentencing, the United

States Supreme Court issued its decision in Hurst v. Florida, 136 S. Ct. 616, 624

(2016), declaring “Florida’s sentencing scheme” unconstitutional. The trial court

postponed sentencing and eventually reset the sentencing hearing for May 9, 2016.

Prior to sentencing, the Florida Legislature enacted chapter 2016-13, Laws of

Florida, which became effective on March 7, 2016. The new law authorized

imposition of the death penalty, but only if at least ten jurors recommended a death

sentence. See § 921.141(2)-(3), Fla. Stat. (2016).

      Over Tisdale’s objection that death was no longer a valid legal sentence

without at least ten jurors voting to recommend the death penalty, the trial court

imposed a death sentence under section 921.141(3) as to the murder charge,



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


                                         -4-
finding the nonunanimous death recommendation to be harmless beyond a

reasonable doubt in light of the jury’s unanimous verdict on charges that would

factually establish two aggravating factors: (1) the victim of the capital felony was

a law enforcement officer engaged in lawful performance of his duties; and (2) a

prior violent felony conviction (based on the contemporaneous conviction of

aggravated assault on a law enforcement officer with a firearm). The trial court

relied only on the two aggravating factors found by the jury as part of its verdict,

assigning great weight to both. 4 The portion of chapter 2016-13 authorizing



        4. The trial court found the following nonstatutory mitigating circumstances
and assigned the noted weight: (1) Tisdale was twenty-five years old when he
committed the murder (very little weight); (2) Tisdale had a hereditary
predisposition to substance abuse and dependence (very little weight); (3) Tisdale’s
family history includes generational dysfunction (very little weight); (4) Tisdale
was exposed to cocaine while a fetus (very little weight); (5) Tisdale was raised by
a single mother (very little weight); (6) Tisdale’s genetic father is unknown (very
little weight); (7) Tisdale’s father was absent (moderate weight); (8) Tisdale’s
father was incarcerated for robberies and died in prison (almost no weight); (9)
Tisdale suffered physical punishment as a child by his mother’s boyfriend (very
little weight); (10) Tisdale’s mother abused him (almost no weight); (11) Tisdale
observed domestic violence in the home (little weight); (12) Tisdale frequently
changed schools as a child (very little weight); (13) Tisdale experienced residential
instability (slight weight); (14) Tisdale had two stepfathers (very little weight);
(15) Tisdale had corruptive male role models (very little weight); (16) Tisdale’s
cousin was murdered (moderate weight); (17) Tisdale experienced racism growing
up (almost no weight); (18) Tisdale lived in a corruptive community (very little
weight); (19) Tisdale grew up in a violent community (minimal weight); (20)
Tisdale experienced instances of police harassment (very little weight); (21)
Tisdale had poor grades (very little weight); (22) Tisdale used marijuana regularly
(very little weight); (23) Tisdale marginally adjusted as a young adult (very little
weight); (24) Tisdale is a devoted, loving son (moderate weight); (25) Tisdale is a

                                         -5-
imposition of a death sentence based upon a recommendation of ten jurors would

later be declared unconstitutional in Perry v. State, 210 So. 3d 630, 640 (Fla. 2016)

(applying Hurst, which held that a death sentence could not be legally imposed

absent a unanimous death recommendation by the penalty phase jury).

                                     ANALYSIS

      Tisdale raises three issues on appeal: (1) whether chapter 2016-13 entitles

him to a life sentence without the possibility of parole; (2) whether he is entitled to

automatic commutation of his death sentence to a life sentence without the

possibility of parole pursuant to section 775.082(2), Florida Statutes (2012); and

(3) whether he is entitled to a new penalty phase pursuant to Hurst. Having found

the evidence sufficient to support Tisdale’s first-degree murder conviction, we



loving father (very little weight); (26) Tisdale is a giving person and is selfless
(almost no weight); (27) Tisdale has a good personality (almost no weight); (28)
Tisdale was a pleasant and likeable child (very little weight); (29) Tisdale
graduated from high school (moderate weight); (30) Tisdale earned his associate of
arts degree (moderate weight); (31) Tisdale has artistic abilities (very little weight);
(32) Tisdale has a loving relationship with his family (very little weight); (33)
Tisdale has matured and is remorseful (almost no weight); (34) Tisdale attended
church and was spiritual (very little weight); (35) Tisdale had a good employment
record (moderate weight); (36) Tisdale has good conduct in jail (very little weight);
(37) Tisdale will adjust to life in prison and will most likely not be dangerous in
the future (very little weight); (38) Tisdale demonstrates high potential for
rehabilitation (very little weight); (39) Tisdale would contribute positively in
prison (almost no weight); (40) Tisdale has no juvenile history (moderate weight);
and (41) Tisdale has no violent criminal history before February 28, 2013
(moderate weight).


                                         -6-
address Tisdale’s claims that he is entitled to relief pursuant to Hurst, as well as his

alternative claims that we should remand for a life sentence.

                                  Chapter 2016-13

        Tisdale first argues that chapter 2016-13 should apply to his case and

entitles him to a life sentence without the possibility of parole based upon double

jeopardy principles. We reject this argument. Tisdale’s jury was sworn and

rendered its recommendation before the passage of chapter 2016-13. Because the

recommendation supported imposition of the death penalty at the time the jury was

sworn and jeopardy attached, double jeopardy principles do not bar a new penalty

phase trial. Cf. Victorino v. State, 241 So. 3d 48, 50 (Fla. 2018) (determining that a

defendant sentenced to death following nonunanimous jury recommendations “has

not been acquitted of the death penalty” when the law at the time of trial would

have permitted a death sentence, such that retrial is not barred by double jeopardy);

see also, Hurst v. State, No. SC17-302, 2017 WL 1023762, at *1 (Fla. Mar. 16,

2017) (summarily rejecting as “without merit” claims based on double jeopardy

grounds that the State is precluded from seeking the death penalty in Hurst

resentencing proceedings); Poland v. Arizona, 476 U.S. 147, 154-57 (1986)

(holding that reimposing the death penalty on petitioners did not violate the Double

Jeopardy Clause because neither the sentence nor the reviewing court held that the

prosecution had not proved its case that the death penalty was not appropriate).


                                         -7-
      Moreover, we have invalidated the provision of chapter 2016-13 on which

Tisdale attempts to rely for this argument. See Perry, 210 So. 3d at 640; Evans v.

State, 213 So. 3d 856, 859 (Fla. 2017) (holding that chapter 2016-13—but not the

portion authorizing a 10-2 vote requirement for the jury’s final recommendation—

can be validly applied to pending prosecutions).

                       Section 775.082(2), Florida Statutes

      Next, Tisdale argues that he is entitled to automatic commutation of his

death sentence to a life sentence without the possibility of parole pursuant to

section 775.082(2), Florida Statutes (2012). We have consistently rejected this

argument in other similar cases, see, e.g., Caylor v. State, 218 So. 3d 416, 425 (Fla.

2017) (denying defendant’s claim that section 775.082(2) mandates commutation

to a life sentence and remanding for a new penalty phase pursuant to Hurst), and

reject Tisdale’s argument for the reasons explained in Caylor. Id.

                                        Hurst

      Finally, Tisdale argues that our Hurst-related precedent requires reversal of

his death sentence. We agree, vacate Tisdale’s death sentence, and remand for a

new penalty phase pursuant to Hurst.

      In Hurst v. Florida, 136 S. Ct. 616, 619 (2016), the Supreme Court held that

Florida’s capital sentencing scheme was unconstitutional, because “[t]he Sixth

Amendment requires a jury, not a judge, to find each fact necessary to impose a


                                         -8-
sentence of death. A jury’s mere recommendation is not enough.” On remand, we

held that Hurst error occurs when the jury does not unanimously find the existence

of any aggravating factor, that the aggravating factors are sufficient to impose

death, and that the aggravation outweighs the mitigation. Hurst, 202 So. 3d at 54.

We further held that the jury recommendation for death must be unanimous before

the court may impose a death sentence. Id. We also determined that Hurst error is

capable of harmless error review. See id. at 67.

      “New rules of law set down by this Court, or by the United States Supreme

Court, apply to cases on direct review or those not otherwise finalized.” See

Deviney v. State, 213 So. 3d 794, 799 (Fla. 2017). Tisdale’s case is on direct

appeal, and thus his appeal is subject to Hurst, see id., which requires reversal of

the death sentence based upon the nonunanimous recommendation. Cf. Kopsho v.

State, 209 So. 3d 568, 570 (Fla. 2017) (concluding that Kopsho’s death sentence

violated Hurst “[b]ecause Kopsho was condemned by a vote of ten to two”). And,

we have consistently held that Hurst error is not harmless in cases where the jury’s

recommendation is not unanimous. See, e.g., Hojan v. State, 212 So. 3d 982, 1000

(Fla. 2017) (determining that Hurst error was not harmless because the jury did not

return a unanimous recommendation for death).




                                         -9-
      Accordingly, we vacate Tisdale’s sentence of death and remand for a new

penalty phase pursuant to Hurst. 5

                                     CONCLUSION

      For the foregoing reasons, we affirm Tisdale’s convictions, affirm the

sentences on all lesser charges, vacate the death sentence imposed on the charge of

first-degree murder of a law enforcement officer, and remand this case for a new

penalty phase pursuant to Hurst.

      It is so ordered.

PARIENTE, LEWIS, QUINCE, and LABARGA, JJ., concur.
PARIENTE, J., concurs with an opinion.
LAWSON, J., concurs specially with an opinion.
CANADY, C.J., and POLSTON, J., concur as to the convictions and the noncapital
sentences and dissent as to the death sentence.

ANY MOTION FOR REHEARING OR CLARIFICATION MUST BE FILED
WITHIN SEVEN DAYS. A RESPONSE TO THE MOTION FOR
REHEARING/CLARIFICATION MAY BE FILED WITHIN FIVE DAYS
AFTER THE FILING OF THE MOTION FOR REHEARING/CLARIFICATION.
NOT FINAL UNTIL THIS TIME PERIOD EXPIRES TO FILE A
REHEARING/CLARIFICATION MOTION AND, IF FILED, DETERMINED.




      5. Because we conclude that Tisdale is entitled to a new penalty phase
pursuant to Hurst, we decline to address the proportionality of his death sentence.
See Bargo v. State, 221 So. 3d 562, 570 (Fla. 2017) (holding that because
defendant was entitled to Hurst relief, this Court need not address the
proportionality of his death sentence).


                                        - 10 -
PARIENTE, J., concurring.

       I concur with the per curiam opinion reversing Tisdale’s death sentence and

remanding for a new penalty phase pursuant to Hurst 6 based on the jury’s

nonunanimous recommendation for death by a vote of nine to three. I also agree

that Tisdale is not entitled to have his sentence reduced to life despite the unusual

timing of the jury’s recommendation for death and the trial court’s sentencing in

this case. 7

       I write separately to emphasize the significant mitigation in this case, in

particular the substantial early childhood adversity Tisdale experienced, including

exposure to cocaine in utero, being raised by a single parent, having a father who

was incarcerated, and witnessing domestic violence at home. All of these

experiences are properly classified as Adverse Childhood Experiences (ACEs). 8


      6. 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).

      7. The jury’s recommendation for death was before Hurst v. Florida, 136 S.
Ct. 616, but the sentencing occurred after Hurst v. Florida and after the Legislature
passed the first new sentencing law in light of Hurst v. Florida. See ch. 2016-13,
Laws of Fla.

       8. See Vincent J. Felitti, et al., Relationship of Childhood Abuse and
Household Dysfunction to Many of the Leading Causes of Death in Adults. The
Adverse Childhood Experiences (ACE) Study, 14 Am. J. Prev. Med. 245-58 (1998).
There is an “enormous body of research” on ACEs and their effect on children into
their adult lives. Kathleen Wayland, The Importance of Recognizing Trauma
Throughout Capital Mitigation Investigations and Presentations, 36 Hofstra L.
Rev. 923, 927 (2008); see, e.g., Heather C. Forkey, Children Exposed to Abuse and

                                         - 11 -
See Jackson v. State, 213 So. 3d 754 (Fla. 2017); State v. Bright, 200 So. 3d 710,

726 (Fla. 2016).

      This Court has explained the ACE study, “which identifies ten factors that

suggest trauma and adverse environments,” stating:

      The factors indicative of trauma are: (1) childhood physical abuse;
      (2) childhood verbal abuse; (3) childhood sexual abuse;
      (4) childhood physical neglect; (5) childhood emotional neglect; and
      (6) domestic violence in the household. The factors indicative of
      an adverse environment are: (7) parents who are separated or
      divorced; (8) growing up in a household where someone is
      incarcerated; (9) growing up in a household where there is someone
      with a serious alcohol or drug problem; and (10) growing up in a
      household where there is someone with serious mental illness. If a
      person encounters just one of those factors, then that person is
      considered significantly more at risk for psychological and mental
      problems. Furthermore, the more factors applicable, the higher the
      risk. For instance, an individual who has experienced five ACE
      factors is predicted to live twenty years less than an individual without
      any ACE factor.

Bright, 200 So. 3d at 726; accord Ellerbee v. State, 232 So. 3d 909, 929 (Fla.

2017). “Only one-tenth of one percent (or one in one thousand people) are

exposed to more than seven ACEs. . . . A high exposure to ACEs . . . is correlated

to an increased risk of substance abuse, depression, domestic violence, and suicide,



Neglect: The Effects of Trauma on the Body and Brain, 30 J. Am. Acad. Matrim.
Law. 307, 310-15 (2018); Adverse Childhood Experiences (ACEs), Ctrs. for
Disease Control & Prevention, https://www.cdc.gov/violenceprevention/acestudy/
(last visited Sept. 26, 2018); see also Research, ACEs Too High,
https://acestoohigh.com/research/ (last visited Sept. 26, 2018) (listing studies on
ACEs since Dr. Felitti’s 1998 study).

                                       - 12 -
among other negative outcomes.” Ellerbee, 232 So. 3d at 929. An increased

number of ACEs affects a child’s health and brain development.

      In fact, recent studies performed by our own Department of Juvenile Justice

show that a large percentage of our delinquent youth have high ACE scores. Mark

A. Greenwald, Fla. Dep’t Juv. Just., Adverse Childhood Experiences: ACEs and

Juvenile Offenders 8, 17 (Jan. 13, 2015),

http://www.djj.state.fl.us/docs/research2/ace_studies_(nationally_and_in_florida)_

(1-13-15).pdf?sfvrsn=2. In addition, the Department of Juvenile Justice reports

that ACEs cause long-term effects, including dissociation, homelessness, and

delinquency/criminal behavior. Id. at 6-7.

      In this case, the record makes clear that Tisdale’s childhood included many

ACEs. Specifically, Tisdale experienced physical abuse, emotional abuse,

emotional neglect, domestic violence in the household between his mother and her

boyfriend, and grew up in a household where someone was incarcerated, all of

which have been proven to adversely affect a child’s development. The defense

alleged in its sentencing memorandum that Tisdale suffered from all of the

following: hereditary predisposition to substance abuse and dependence;

generational family dysfunction and distress; prenatal cocaine exposure; raised by

a single mother; ambiguous paternity; his father’s absence, criminality, and

imprisonment; emotional and supervisory neglect by his mother; frequent school


                                       - 13 -
changes (seven schools between kindergarten and 12th grade); residential

instability (over six residences by age eight); sequential stepfather figures;

corruptive male role models in his extended family; murder of his maternal first

cousin; community racism; corruptive community; community violence; police

profiling/harassment/violence; inconsistent school performance; marijuana

dependence from age fifteen; and marginal young adult adjustment. Am.

Sentencing Order, at 8-9.

      Further, during the penalty phase, Dr. Garbarino, a professor of psychology

and developmental psychologist who evaluated Tisdale, testified that Tisdale’s

development was negatively affected by the absence of a father figure, racism, and

the use of violence in his raising. Dr. Garbarino also testified that Tisdale

experienced more adversity than 98% of other youth.

      It is clear that Tisdale’s childhood was fraught with “trauma and adverse

environments,” all of which should be considered in determining the appropriate

sentence in this case. Bright, 200 So. 3d at 726. While this type of mitigation does

not serve as an “excuse” for committing a violent act and especially the ultimate

violent act—murder—it is important that judges and juries understand its

significance in shaping a defendant’s development and choices when evaluating

mitigation.

      Accordingly, I concur in the reversal for a new penalty phase.


                                        - 14 -
LAWSON, J., concurring specially.

      I fully concur in that portion of the opinion affirming Tisdale’s conviction

and concur specially in the reversal of Tisdale’s death sentence. See Okafor v.

State, 225 So. 3d 768, 775-76 (Fla. 2017) (Lawson, J., concurring specially).

An Appeal from the Circuit Court in and for St. Lucie County,
     Dan L. Vaughn, Judge - Case No. 562013CF000608AXXXXX

Jeffrey H. Garland of Jeffrey H. Garland, P.A., Fort Pierce, Florida,

      for Appellant

Pamela Jo Bondi, Attorney General, Tallahassee, Florida, Lisa-Marie Lerner and
Donna M. Perry, Assistant Attorneys General, West Palm Beach, Florida,

      for Appellee




                                       - 15 -
