          Supreme Court of Florida
                                  ____________

                                  No. SC17-456
                                  ____________

                          GUERRY WAYNE HERTZ,
                                Petitioner,

                                        vs.

                             JULIE L. JONES, etc.,
                                 Respondent.

                                  [May 18, 2017]

PER CURIAM.

      This case is before the Court on the petition of Guerry Wayne Hertz for a

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

                                      FACTS

      We previously detailed the facts surrounding Hertz’s case on his direct

appeal:

             In the early morning hours of July 27, 1997, the charred bodies
      of Melanie King and Robin Keith Spears were found in the victims’
      burning home in Wakulla County, Florida. Hertz, Jason Looney, and
      Jimmy Dempsey were each indicted for the first-degree murders of
      the victims, and each codefendant was also charged with burglary of a
      dwelling while armed, armed robbery with a firearm, arson of a
      dwelling, and use of a firearm during the commission of a felony as a
      result of this incident. Prior to trial, codefendant Dempsey negotiated
a plea with the State and was sentenced to consecutive life sentences
in return for providing his testimony at Hertz and Looney’s joint trial.
       The evidence presented at the trial revealed the following facts.
At approximately 11 p.m. on July 26, 1997, Hertz and his
codefendants left an acquaintance’s house on foot within walking
distance from the victims’ home. All three men were armed with
guns. A resident who lived about 500 yards from the victims testified
that Hertz appeared at her door at about 2 a.m. asking to use her phone
because “his truck had broken down.” When she refused, the trio
continued down the road towards the victims’ home and, upon seeing
the victims’ black Mustang, Looney said, “There’s my car right there.
That’s the one I want.”
       Dempsey and Hertz went to the victims’ front door as a decoy
and asked if they could use the phone. King provided them with a
cordless phone, and Dempsey feigned making a phone call. When
Dempsey attempted to return the phone, Hertz pointed his gun at King
and forced his way in. Looney then entered and pointed his rifle at
Spears. Spears and King were bound and gagged with duct tape and
placed face down on their bed. Hertz and his codefendants removed a
significant amount of the victims’ property, including a VCR, a
television, jewelry, furniture, and CDs, and loaded the victims’
belongings into the victims’ two vehicles. Looney also found
approximately $1500 of the victims’ money in an envelope, which
was ultimately divided equally among the three.
       Hertz and Looney concluded that they could leave no witnesses
and informed Dempsey of their decision. Dempsey said Hertz and
Looney then poured accelerants throughout the victims’ home. All
three men, still armed, went to the bedroom where the victims were
bound, side-by-side, face down on their bed. When they entered the
back bedroom, King said that she would “rather die being burnt up
than shot.” She stated, “Please, God, don’t shoot me in the head.”
Hertz replied, “Sorry, can’t do that,” and then he proceeded to open
fire; Looney followed and then Dempsey. The victims died as a result
of the gunshot wounds.
       Subsequent to the shootings, the victims’ home was set ablaze.
Hertz drove away in the victims’ white Ford Ranger, and Looney
drove the victims’ black Ford Mustang, with Dempsey as a passenger.
According to Dempsey, the whole episode at the victims’ home lasted
about two hours. The trio proceeded to Hertz’s house and unloaded
the stolen items and divided up the money. Two employees at the

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Wal-Mart in Tallahassee testified that the three men made purchases
at the store at around 5 a.m. the morning of the murders, before
“showing off” their new vehicles, i.e., a black Mustang and a white
Ford Ranger, to both of the employees. A Wal-Mart receipt for a
clothing purchase was later found in the victims’ Mustang,
corroborating the employees’ testimony.
       Hertz and his codefendants made their way to Daytona Beach
Shores where, later that day, they were involved in a pursuit and
shootout with police. Looney and Dempsey were arrested after
abandoning and fleeing from the victims’ black Mustang. Hertz
abandoned the victims’ Ford Ranger after being shot, and he paid a
cabdriver $100 to drive him to his aunt’s house in St. Augustine.
Hertz was arrested that same day in St. Augustine, and victim Spears’
.9mm gun was recovered from Hertz’s bag.
       A firearms expert with FDLE testified that one of the bullets
recovered from the area of the victims’ burned bed was fired from the
.380 Lorcin handgun recovered from Looney at the time of his arrest
in Daytona Beach, i.e., the same handgun owned by Keith Spears and
used, according to Dempsey, by Hertz to shoot the victims. The other
bullet was fired from a .30 caliber carbine rifle, not inconsistent with
[a] .30 caliber rifle used by Looney to shoot the victims, and later
recovered in the victims’ Mustang. A roll of duct tape, Looney’s
wallet with $464, and Dempsey’s wallet with $380 were also found in
the Mustang. A fingerprint analyst with FDLE analyzed latent
fingerprints taken from the Mustang and concluded that Hertz and his
codefendants had all touched the car. The chemist found evidence of
various accelerants on items of clothing found in the Mustang. In
addition, a law enforcement investigator with the State Fire Marshal’s
Office testified that the kind of damage that was done by the fire does
not happen unless an accelerant is used.
       The state medical examiner testified that the bodies were
severely burned. He graphically detailed the condition of the bodies
as depicted in the photographs: the legs were burned off below the
knees, the hands were burned to nubs, the bones of the arms were
fractured by the fire, and the skulls were burned partially away. The
victims had to be positively identified by dental records. The medical
examiner also testified that there could have been other injuries that
were not detected due to the extensive burns.
       King was shot at least two times in the head, which caused her
death. However, the medical examiner was not able to trace the path

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      of the bullet because the skull was burned away. He testified that it
      was possible that other bullets struck the body, which could not be
      determined because of the fire. King lived one to two minutes after
      she was shot. However, there was no soot in the trachea, indicating
      that she was not alive when the fire started. Spears was shot at least
      one time in the head, which caused his death. The bullet went in the
      back of the neck and exited above the right eye. Spears also lived one
      to two minutes after he was shot, and again, no soot was discovered in
      his trachea, meaning that he was dead at the time of the fire. The
      defense did not present any evidence.

Hertz v. State, 803 So. 2d 629, 635-37 (Fla. 2001).

      Hertz was convicted and sentenced to death for the first-degree murders of

Melanie King and Robin Keith Spears. Id. at 637. A jury recommended a

sentence of death by a vote of ten to two, and the trial court sentenced Hertz to

death for both murders. Id.

      [T]he trial court found as aggravating factors that (1) the capital
      felony was committed by a person convicted of a felony and who was
      on felony probation; (2) the capital felony was committed by a person
      previously convicted of another capital felony or of a felony involving
      the use or threat of violence to the person; (3) the capital felony was
      committed while Hertz was engaged in the commission of a burglary,
      arson, and robbery; (4) the capital felony was committed for the
      purpose of avoiding or preventing a lawful arrest or effecting an
      escape from custody; (5) the murder was committed for financial or
      pecuniary gain (the court merged this aggravating factor with the fact
      that the capital felony was committed during the course of a burglary,
      arson, or robbery); (6) the murder was especially heinous, atrocious,
      or cruel, and (7) the murder was cold, calculated, and premeditated
      without any pretense of moral or legal justification.
             In mitigation, the trial court found (1) Hertz’s impaired capacity
      to appreciate the criminality of his conduct or to conform his conduct
      to the requirements of law was given some weight; (2) his age of 20,
      which was given only moderate weight; (3) as to all other
      nonstatutory mitigation, (a) Hertz’s difficult childhood was given


                                        -4-
      significant weight; (b) the fact that Hertz had no significant criminal
      history or no history of violence and the fact that he posed no
      problems since being incarcerated were given marginal weight; (c)
      that Hertz’s remorse and the fact that he cried during some of the
      testimony and when he made his statement to the court was given
      moderate weight; (d) the fact that society would be adequately
      protected if he were to be given a life sentence without the possibility
      of parole was entitled to “no weight” and (e) the fact that a
      codefendant, Dempsey, received a life sentence following a plea, was
      given significant weight and substantially considered by the trial
      court.

Id. at 637-38.

      On direct appeal, we affirmed Hertz’s convictions and sentences. Id. at 654.

The United States Supreme Court denied certiorari review on June 28, 2002. Hertz

v. Florida, 536 U.S. 963 (2002).

                                     ANALYSIS

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

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

death by a vote of ten to two. Thus, Hertz’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).

      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). Hertz’s conviction became



                                         -5-
final on June 28, 2002. Hertz, 536 U.S. 963. Thus, Hertz falls within the category

of defendants to whom Hurst is applicable.

      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)

the capital felony was committed by a person convicted of a felony and who was

on felony probation; (2) the capital felony was committed by a person previously

convicted of another capital felony or of a felony involving the use or threat of

violence to the person; and (3) the capital felony was committed while Hertz was

engaged in the commission of a burglary, arson, and robbery—whether these

aggravating circumstances were “sufficient” to qualify Hertz for the death penalty

would also be a jury determination. Because the jury vote was ten to two, 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 aggravators that were unanimously found were also

unanimously found to be sufficient to qualify for the death penalty.




       1. Among the non-automatic aggravators were HAC and CCP—two of the
weightiest aggravators in Florida. Jackson v. State, 18 So. 3d 1016, 1035 (Fla.
2009) (“Jackson has not contested the eight aggravating circumstances found by
the trial court, which included two of the most serious aggravators (i.e., HAC and
CCP).”).


                                        -6-
      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 Hertz’s death sentence, and remand for a new penalty

phase proceeding.

                                 CONCLUSION

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

vacate Hertz’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.
CANADY, POLSTON, and LAWSON, JJ., dissent.

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

Original Proceeding – Habeas Corpus

Clyde M. Taylor, Jr., of Taylor & Taylor, LLC, Saint Augustine, Florida; and Billy
H. Nolas, Chief, Capital Habeas Unit, Office of the Federal Public Defender,
Northern District of Florida, Tallahassee, Florida,

      for Petitioner

No appearance for Respondent




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