          Supreme Court of Florida
                                  ____________

                                  No. SC17-349
                                  ____________

                               NOEL DOORBAL,
                                  Petitioner,

                                        vs.

                             JULIE L. JONES, etc.,
                                 Respondent.

                               [September 20, 2017]

PER CURIAM.

      This case is before the Court on the petition of Noel Doorbal for a writ of

habeas corpus. We have jurisdiction. See art. V, § 3(b)(9), Fla. Const.

                                     FACTS

      We previously detailed the gruesome and intricate facts surrounding

Doorbal’s crimes on his direct appeal. Doorbal v. State, 837 So. 2d 940, 944-52

(Fla. 2003). Relevant here, Doorbal was convicted and sentenced to death for the

first-degree murders of Frank Griga and Krisztina Furton. Id. at 951. A jury

recommended a sentence of death by a vote of eight to four, and the trial court

sentenced Doorbal to death for both murders. Id.
      In his sentencing order, the trial judge found a total of six aggravators:
      that Doorbal had been convicted of a prior violent felony; that the
      murders were committed to avoid arrest, for pecuniary gain, and in the
      course of a kidnapping; and that they were cold, calculated, and
      premeditated (CCP), and heinous, atrocious, or cruel (HAC). All but
      HAC applied to both murders. The court found that the HAC
      aggravating factor applied to the Furton murder only. Each
      aggravator was accorded great weight. The trial judge did not find
      any statutory mitigators, but did find six nonstatutory mitigators: that
      Doorbal had a difficult childhood, was a hard-working and loyal
      employee, was a loyal friend and positive influence on others, had
      religious devotion and the ability to help others with religious beliefs,
      exhibited appropriate courtroom behavior, and that life imprisonment
      would remove the menace to society. Each nonstatutory mitigator
      was accorded little weight.

Id. at 951-52.

      On direct appeal, we affirmed Doorbal’s convictions and sentences. Id. at

963. The United States Supreme Court denied certiorari review on June 27, 2003.

Doorbal v. Florida, 539 U.S. 962 (2003).

                                     ANALYSIS

      We conclude that the appropriate action is to grant Doorbal’s petition, vacate

his sentence, and remand for a new penalty phase. Here, the jury recommended

death by a vote of eight to four. Thus, Doorbal’s death sentence violated the

central holding in Hurst v. State: all critical findings for the imposition of death

must be found unanimously by the jury. Hurst v. State, 202 So. 3d 40, 44 (Fla.

2016), cert. denied, 137 S. Ct. 2161 (2017).




                                         -2-
      In Mosley v. State, we held that Hurst applies retroactively to those

postconviction defendants whose sentences became final after the United States

Supreme Court’s June 24, 2002, decision in Ring v. Arizona, 536 U.S. 584 (2002).

Mosley v. State, 209 So. 3d 1248, 1283 (Fla. 2016). Doorbal’s convictions became

final on June 27, 2003. Doorbal, 539 U.S. 962. Thus, Doorbal falls within the

category of defendants to whom Hurst is applicable. See Hertz v. Jones, 218 So.

3d 428 (Fla. 2017); Hernandez v. Jones, 217 So. 3d 1032 (Fla. 2017); Card v.

Jones, 219 So. 3d 47 (Fla. 2017).

      Accordingly, the issue is then whether any error that occurred during the

penalty phase was harmless beyond a reasonable doubt. Although three

aggravating factors were necessarily found by a unanimous vote of the jury—(1)

conviction of a prior violent felony; (2) the capital felony was committed while

Doorbal was engaged in the commission of a kidnapping; and (3) the capital felony

was committed for pecuniary gain—whether these aggravating circumstances were

“sufficient” to qualify Doorbal for the death penalty would also be a jury

determination. Because the jury vote was eight to four, there is no way of knowing

if such a finding was unanimous. Moreover, there is no way of knowing if the jury

found any of the other aggravating circumstances unanimously, 1 or if any



     1. Two of the non-automatic aggravators—HAC and CCP—are among the
weightiest in Florida. Jackson v. State, 18 So. 3d 1016, 1035 (Fla. 2009).


                                        -3-
aggravators that were unanimously found were also unanimously found to

outweigh the mitigation, which is necessary for imposing the death penalty. Hurst,

202 So. 3d at 68; Deviney v. State, 213 So. 3d 794, 800 (Fla. 2017).

      In sum, any attempt to determine what findings were made by the jurors who

voted for life and the jurors who voted for death would amount to speculation and

cannot rise to the level of proof beyond a reasonable doubt. Accordingly, the error

in this case cannot be considered harmless. Thus, we grant the petition for a writ

of habeas corpus, vacate Doorbal’s death sentence, and remand for a new penalty

phase proceeding. See Hertz, 218 So. 3d 428; Hernandez, 217 So. 3d 1032; Card,

219 So. 3d 47.

                                 CONCLUSION

      Based on the foregoing, we grant the petition for a writ of habeas corpus,

vacate Doorbal’s sentence, and remand for a new penalty phase proceeding

consistent with Hurst.

      It is so ordered.

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

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




                                        -4-
LAWSON, J., specially concurring.

      See Okafor v. State, 42 Fla. L. Weekly S639, S641, 2017 WL 2481266, at

*6 (Fla. June 8, 2017) (Lawson, J., concurring specially).

Original Proceeding – Habeas Corpus

Maria del Carmen Calzon of Offices of Maria del Carmen Calzon, P.A., Coral
Gables, Florida,

      for Petitioner

Pamela Jo Bondi, Attorney General, Tallahassee, Florida; and Melissa Roca,
Assistant Attorney General, Miami, Florida,

      for Respondent




                                        -5-
