          Supreme Court of Florida
                                   ____________

                                  No. SC17-1542
                                  ____________

                             STATE OF FLORIDA,
                                 Appellant,

                                         vs.

                               JOSEPH P. SMITH,
                                   Appellee.

                                  [April 5, 2018]

PER CURIAM.

      This case is before the Court on appeal from an order granting a successive

motion to vacate a sentence of death under Florida Rule of Criminal Procedure

3.851. Because the order concerns postconviction relief from a sentence of death,

we have jurisdiction. Art. V, § 3(b)(1), Fla. Const.

                         FACTS AND BACKGROUND

      This Court has previously detailed the gruesome facts of this case. Smith v.

State (Smith I), 28 So. 3d 838, 844-53 (Fla. 2009). Relevant to the instant

proceeding, Joseph Smith was convicted of first-degree murder, kidnapping, and

capital sexual battery of eleven-year-old Carlie Jane Brucia and was sentenced to
death. Id. at 844. After a penalty phase, the jury recommended a death sentence

by a vote of ten to two. Id. at 851.1 On direct appeal, we held that the trial court’s



      1. As we stated in Smith I,

      The trial court determined that the State had proven beyond a
      reasonable doubt the existence of six statutory aggravators: (1) Smith
      committed the felony while he was on probation, see § 921.141(5)(a),
      Fla. Stat. (2003) (moderate weight); (2) the murder was committed
      while Smith was engaged in the commission of a sexual battery or
      kidnapping, see § 921.141(5)(d), Fla. Stat. (2003) (significant weight);
      (3) the murder was committed for the purpose of avoiding lawful
      arrest, see § 921.141(5)(e), Fla. Stat. (2003) (great weight); (4) the
      murder was especially heinous, atrocious or cruel (HAC), see
      § 921.141(5)(h), Fla. Stat. (2003) (great weight); (5) the murder was
      cold, calculated, and premeditated (CCP), see § 921.141(5)(i), Fla.
      Stat. (2003) (great weight); and (6) the victim was under twelve years
      of age, see § 921.141(5)(l ), Fla. Stat. (2003) (great weight).
             The trial court concluded that Smith had failed to prove the
      existence of any statutory mitigating circumstances. The trial court
      found a total of thirteen non-statutory mitigating circumstances: (1) a
      long and well-documented history of mental illness (moderate
      weight); (2) a long and well-documented history of drug abuse
      (moderate weight); (3) longstanding severe pain from back injuries
      that contributed to his addiction (little weight); (4) Smith repeatedly
      sought help for his problems (little weight); (5) Smith was repeatedly
      denied treatment or received inadequate treatment (little weight); (6)
      positive qualities, including—(a) skills as a mechanic, plumber, and
      carpenter; (b) performance of kind deeds for others; (c) love and
      support with his family; (d) despite his incarceration, attempts to exert
      a positive influence on family members; (e) artistic skills; and (f) he
      cares about animals (moderate weight); (7) providing information that
      led to the resolution of this case (very little weight); (8) his family
      assisted law enforcement with Smith’s knowledge and cooperation
      (slight weight); (9) demonstration of spiritual growth (moderate
      weight); (10) maintenance of gainful employment (slight weight); (11)
      he is a loving father to his three daughters (moderate weight); (12)

                                         -2-
finding of the CCP aggravator was not supported by competent, substantial

evidence and thus the CCP aggravator was stricken. Id. at 868. Nevertheless, we

ultimately affirmed Smith’s convictions and sentence. Id. at 878. The United

States Supreme Court denied certiorari review on June 28, 2011. Smith v. Florida,

564 U.S. 1052 (2011).

        Smith subsequently filed a motion for postconviction relief raising numerous

challenges, including a Ring2 challenge, which the postconviction court summarily

denied. Smith v. State (Smith II), 151 So. 3d 1177, 1181 (Fla. 2014). Smith

appealed to this Court, and we affirmed the denial of postconviction relief. Id. at

1184. Next, Smith filed a petition for writ of habeas corpus in the United States

District Court for the Middle District of Florida, which was stayed as of July 15,

2016.

        On January 5, 2017, after the issuance of Hurst v. Florida, 136 S. Ct. 616

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

(2017), and its progeny, Smith filed this Successive Motion to Vacate Death

Sentence, which the postconviction court granted with regard to the claim that



        remorse (little weight); and (13) he is amenable to rehabilitation and a
        productive life in prison (little weight).

28 So. 3d at 852-53 (footnotes omitted).
        2. Ring v. Arizona, 536 U.S. 584 (2002).


                                          -3-
Smith is entitled to a new penalty phase. The State’s appeal followed. On

September 19, 2017, this Court issued an order to show cause why the lower

court’s order should not be affirmed based on this Court’s precedent in Hurst,

Davis v. State, 207 So. 3d 142 (Fla. 2016), and Mosley v. State, 209 So. 3d 1248

(Fla. 2016), to which the parties responded.

                                    ANALYSIS

      Smith contends that he is entitled to relief pursuant to the United States

Supreme Court’s opinion in Hurst v. Florida, which 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 sentence of death. A

jury’s mere recommendation is not enough.” 136 S. Ct. at 619. On remand, this

Court held that a unanimous jury recommendation for death is required before the

trial court may impose a sentence of death. Hurst, 202 So. 3d at 54. Moreover,

this Court 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.” Id. We also determined that Hurst error is capable of harmless error

review. Id. at 67.




                                        -4-
      Hurst applies retroactively to defendants whose sentences became final after

the United States Supreme Court issued its decision in Ring. Mosley, 209 So. 3d at

1283. Thus, Hurst applies retroactively to this case, which became final in 2011.

      Accordingly, we must determine whether the Hurst error during Smith’s

penalty phase proceeding was harmless beyond a reasonable doubt. “[I]n 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 imposition of the death penalty did not contribute to

[the] death sentence . . . .” Hurst, 202 So. 3d at 68. 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

that each aggravating factor was proven beyond a reasonable doubt, that the

aggravating factors were sufficient to impose death, and that the aggravating

factors outweighed the mitigating circumstances.

      We conclude that the State cannot establish that the error in Smith’s case

was harmless beyond a reasonable doubt. In Smith’s case, the jury did not make

the requisite factual findings and did not unanimously recommend a sentence of

death. Instead, the jury recommended the sentence of death by a vote of ten to

two. Therefore, this Court has no way of knowing if the jury unanimously found

any of the five valid aggravating factors—(1) Smith committed the felony while he


                                         -5-
was on probation; (2) the murder was committed while Smith was engaged in the

commission of a sexual battery or kidnapping; (3) the murder was committed for

the purpose of avoiding lawful arrest; (4) HAC; and (5) the victim was under

twelve years of age—that the aggravating factors were sufficient to impose a death

sentence, or whether the aggravating factors outweighed the mitigating

circumstances. Further, this Court cannot speculate why the two jurors who voted

to recommend a sentence of life imprisonment determined that a sentence of death

was not the appropriate punishment. Thus, in line with our post-Hurst precedent,3

we conclude that the Hurst error in Smith’s case was not harmless beyond a

reasonable doubt. Accordingly, we vacate Smith’s sentence of death and remand

for a new penalty phase.




       3. E.g., Mosley, 209 So. 3d 1248 (granting Hurst relief for nonunanimous
jury recommendation, post-Ring defendant); Peterson v. State, 221 So. 3d 571
(Fla. 2017) (same); Bevel v. State, 221 So. 3d 1168 (Fla. 2017) (same); Snelgrove
v. State, 217 So. 3d 992 (Fla. 2017) (same); Newberry v. State, 214 So. 3d 562
(Fla. 2017) (same); Orme v. State, 214 So. 3d 1269 (Fla. 2017) (same); Baker v.
State, 214 So. 3d 530 (Fla. 2017) (same); Deviney v. State, 213 So. 3d 794 (Fla.
2017) (same); Jackson v. State, 213 So. 3d 754 (Fla. 2017) (same); Smith v. State,
213 So. 3d 722 (Fla. 2017) (same); Hodges v. State, 213 So. 3d 863 (Fla. 2017)
(same); Anderson v. State, 220 So. 3d 1133 (Fla. 2017) (same); Ault v. State, 213
So. 3d 670 (Fla. 2017) (same); Dubose v. State, 210 So. 3d 641 (Fla. 2017) (same);
Hojan v. State, 212 So. 3d 982 (Fla. 2017) (same); Durousseau v. State, 218 So. 3d
405 (Fla. 2017) (same); Calloway v. State, 210 So. 3d 1160 (Fla. 2017) (same);
McGirth v. State, 209 So. 3d 1146 (Fla. 2017) (same); Williams v. State, 209 So.
3d 543 (Fla.) (same), cert. denied, 137 S. Ct. 2302 (2017); Armstrong v. State, 211
So. 3d 864 (Fla. 2017) (same); Kopsho v. State, 209 So. 3d 568 (Fla. 2017) (same).


                                       -6-
                                CONCLUSION

      Therefore, we affirm the postconviction court’s order granting Smith 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., dissents with an opinion.

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

LAWSON, J., dissenting.

      See Pagan v. State, 235 So. 3d 317, 319-20 (Fla. 2018) (Lawson, J.,

dissenting).

An Appeal from the Circuit Court in and for Sarasota County,
     Charles E. Roberts, Judge - Case No. 582004CF002129XXXANC

Pamela Jo Bondi, Attorney General, Tallahassee, Florida, and Christina Z.
Pacheco, Assistant Attorney General, Tampa, Florida,

      for Appellant

James Vincent Viggiano, Jr., Capital Collateral Regional Counsel, Ann Marie
Mirialakis and Ali A. Shakoor, Assistant Capital Collateral Regional Counsel,
Middle Region, Temple Terrace, Florida,

      for Appellee




                                       -7-
