        DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                               FOURTH DISTRICT

                           STATE OF FLORIDA,
                               Petitioner,

                                       v.

                             JOHN CHAPMAN,
                               Respondent.

                                No. 4D17-428

                              [August 30, 2017]

  Petition for Writ of Prohibition to the Circuit Court for the Fifteenth
Judicial Circuit, Palm Beach County; Krista Marx, Judge; L.T. Case No.
2015-CF-004298-AMB.

   Pamela Jo Bondi, Attorney General, Tallahassee, and Leslie Campbell,
Assistant Attorney General, West Palm Beach, for petitioner.

  Carey Haughwout, Public Defender, and Gary Lee Caldwell, Assistant
Public Defender, West Palm Beach, for respondent.

GROSS, J.

    The State’s petition for writ of prohibition is granted. See State v. Lopez,
42 Fla. L. Weekly D1267 (Fla. 4th DCA May 31, 2017). The trial court’s
order precluding death as a possible punishment and precluding the State
from death-qualifying the jury is quashed. See State v. Jones, 209 So. 3d
6 (Fla. 2d DCA 2016) (granting prohibition and quashing a trial court’s
pretrial order precluding the death penalty); see also State v. Bloom, 497
So. 2d 2, 3 (Fla. 1986) (”A writ of prohibition is the appropriate remedy
when a trial court attempts to interfere with the prosecutorial discretion
of a state attorney.”).

    The trial court’s ruling that the State could not pursue the death
penalty because no constitutional penalty phase procedure was in place
at the time has been rejected by the Florida Supreme Court. See Evans v.
State, 213 So. 3d 856 (Fla. 2017) (holding that the death penalty statute
could be constitutionally applied in pending prosecutions if the jury is
unanimous in recommending death). In addition, the Florida Legislature
enacted Chapter 2017–1, Laws of Florida (effective March 13, 2017), which
amended the portion of the death penalty statute found problematic in
Perry v. State, 210 So. 3d 630 (Fla. 2016).

    We explained in Lopez that the Florida Supreme Court has not receded
from its long line of precedent holding that aggravating factors need not be
alleged in an indictment. 42 Fla. L. Weekly at D1267 (citations therein).
The Florida Supreme Court does not silently overrule itself, and its
undisturbed precedent on this issue is binding. Puryear v. State, 810 So.
2d 901, 905–06 (Fla. 2002).

   The State has brought to our attention that, while this petition was
pending in this court, defendants in two unrelated cases sought a writ of
prohibition from the Florida Supreme Court arguing that failure to allege
aggravating factors in the indictment precluded the State from seeking the
death penalty. After considering a response and reply, the Florida
Supreme Court denied those petitions “on the merits.” Luongo v. State,
No. SC17-431, 2017 WL 1033694 (Fla. Mar. 17, 2017); Avalos v. State, No.
SC17-622, 2017 WL 1409679 (Fla. Apr. 20, 2017) (citing to Luongo).

   The defendant in this case argues that these unelaborated decisions
have no precedential value, see Dep’t of Legal Affairs v. Dist. Court of
Appeal, 5th Dist., 434 So. 2d 310 (Fla. 1983), but the denial of the petitions
“on the merits” appears to have a preclusive effect on any future claims by
the defendants in those cases. See Topps v. State, 865 So. 2d 1253, 1257-
58 (Fla. 2004). This suggests that the Florida Supreme Court does not
intend to recede from its precedent on this issue.

   The State’s Petition for Writ of Prohibition is granted. The trial court’s
order precluding death as a possible punishment and precluding the State
from death-qualifying the jury is quashed.

CONNER and KLINGENSMITH, JJ., concur.

                            *         *         *

   Not final until disposition of timely filed motion for rehearing.




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