          Supreme Court of Florida
                                   ____________

                                   No. SC17-1355
                                   ____________

                                ENOCH D. HALL,
                                   Appellant,

                                         vs.

                              STATE OF FLORIDA,
                                   Appellee.

                                  [April 12, 2018]

PER CURIAM.

      This case is before the Court on appeal from an order denying a Successive

Motion to Vacate Death Sentence pursuant to Hurst v. State, 202 So. 3d 40 (Fla.

2016), cert. denied, 137 S. Ct. 2161 (2017), under Florida Rule of Criminal

Procedure 3.851. Because the order concerns postconviction relief from a sentence

of death, we have jurisdiction. See art. V, § 3(b)(1), Fla. Const.

                          FACTS AND BACKGROUND

      This Court has previously detailed the underlying facts of this case. Hall v.

State (Hall I), 107 So. 3d 262, 267-71 (Fla. 2012). Relevant to the instant

proceeding, Hall, an inmate at Tomoka Correctional Institution (TCI), was
convicted and sentenced to death for the first-degree murder of Correctional

Officer (CO) Donna Fitzgerald. Hall v. State (Hall II), 212 So. 3d 1001, 1009 (Fla.

2017). After a penalty phase, the jury returned a unanimous death sentence. Id. at

1012.1 Hall appealed, and this Court ultimately affirmed his conviction and




      1. As we stated in Hall I,

             In the trial court’s Sentencing Order, the court found five
      aggravators: (1) previously convicted of a felony and under sentence
      of imprisonment—great weight; (2) previously convicted of another
      capital felony or of a felony involving the use or threat of violence to
      the person—great weight; (3) committed to disrupt or hinder the
      lawful exercise of any governmental function or the enforcement of
      laws—great weight; (4) especially heinous, atrocious or cruel
      [(HAC)]—very great weight; (5) cold, calculated, and premeditated
      [(CCP)]—very great weight; (6) the victim of the capital felony was a
      law enforcement officer engaged in the performance of his or her
      official duties—no weight—merged with aggravator number 3 as
      listed above. In mitigation, the sentencing court found no statutory
      mitigators and eight non-statutory mitigating circumstances: (1) Hall
      was a good son and brother—some weight; (2) Hall’s family loves
      him—little weight; (3) Hall was a good athlete who won awards and
      medals—little weight; (4) Hall was a victim of sexual abuse—some
      weight; (5) Hall was productively employed while in prison—some
      weight; (6) Hall cooperated with law enforcement—some weight; (7)
      Hall showed remorse—little weight; and (8) Hall displayed
      appropriate courtroom behavior—little weight. The trial court
      concluded that the aggravating circumstances far outweighed the
      mitigation and gave great weight to the jury’s unanimous
      recommendation of death. Thus, the trial court imposed the sentence
      of death.
Hall I, 107 So. 3d at 270-71.


                                        -2-
sentence. See generally Hall I, 107 So. 3d 262.2 On October 7, 2013, the United

States Supreme Court denied certiorari, Hall v. Florida, 134 S. Ct. 203 (2013);

thus Hall’s case became final on that date.

      This Court affirmed the denial of Hall’s initial motion for postconviction

relief and denied his petition for writ of habeas corpus. Hall II, 212 So. 3d at 1036.

During the pendency of his initial postconviction motion, Hall filed a Successive

Motion to Vacate Death Sentence pursuant to Hurst, which was denied by the

postconviction court. This appeal from the first successive motion for

postconviction relief follows.

                                    ANALYSIS

                    Hall’s Claims for Relief under Hurst v. State

      We affirm the postconviction court’s denial of relief on this claim for the

reasons discussed below. Most importantly, our opinion in Hall II, and our

corresponding Hurst harmless error analysis denying relief within that opinion,

already addressed the issues that Hall now attempts to present.




       2. We did, however, find that the trial court’s finding of the CCP aggravator
was not supported by competent, substantial evidence, and thus it was stricken.
Hall I, 107 So. 3d at 278-79.


                                        -3-
                              CCP Aggravator Stricken

      We conclude that this subclaim of Hall’s successive postconviction motion

fails on the merits. Notably, aside from Wood v. State, 209 So. 3d 1217, 1234 (Fla.

2017), which is distinguished below, Hall presents no binding precedent that

supports his assertion that the stricken CCP aggravator in his case is sufficient to

receive Hurst relief. Moreover, as discussed below, our recent decisions in

Middleton v. State, 220 So. 3d 1152 (Fla. 2017), cert. denied, 138 S. Ct. 829

(2018), and Cozzie v. State, 225 So. 3d 717, 729 (Fla. 2017), cert. denied, No. 17-

7545 (U.S. Apr. 2, 2018), support the contrary conclusion.

      In Wood, we struck both the CCP and avoid arrest aggravating factors,

which were two of the three aggravators found by the trial court and to which it

assigned “great weight.” Id. at 1233. In ultimately determining that the error in

Wood was not harmless, we emphasized:

             In this case the jury was instructed on both aggravating factors
      that we have determined were not supported by competent, substantial
      evidence. This alone would require a finding that the error was not
      harmless beyond a reasonable doubt. We note that our conclusion in
      this regard is also consistent with our pre-Hurst precedent in Kaczmar
      v. State, 104 So. 3d 990, 1008 (Fla. 2012), where we held that, upon
      striking the CCP and felony-murder aggravating factors so that only
      one valid aggravating factor remained, such error was not harmless
      beyond a reasonable doubt. Post-Hurst, this conclusion is even more
      compelling.

            . . . [T]he jury would have had to make these factual
      determinations that the sole valid aggravating factor—that the capital
      felony was committed while Wood was engaged, or was an

                                         -4-
      accomplice in the commission of a burglary and or robbery—
      outweighed the mitigating circumstances established. “[W]e are not
      so sanguine as to conclude that [Wood’s] jury . . . would have found
      [this sole aggravating factor] sufficient to impose death and that [this
      sole aggravating factor] outweighed the mitigation.”
Id. at 1234 (alterations in original) (emphasis added) (quoting Hurst, 202 So. 3d at

68). In determining that the error was harmful, we repeatedly emphasized that our

conclusion was influenced by the fact that two of the three aggravators presented

were stricken, leaving only one valid aggravating factor for the jury to properly

consider. Thus the harmless error analysis in Wood was based on the Court’s

determination that the remaining sole valid aggravating factor was not sufficient to

support the sentence of death.3

      Wood is distinguishable from Hall’s case for numerous reasons. Firstly,

even after striking the CCP aggravator, Hall had four valid remaining aggravators,

all of which were afforded either “great weight” or “very great weight,”4 as


      3. Ultimately, in Wood, we did not order a new penalty phase because we
determined that Wood’s death sentence was a disproportionate punishment when
the aggravators were stricken. 209 So. 3d at 1234.

       4. “(1) [P]reviously convicted of a felony and under sentence of
imprisonment—great weight; (2) previously convicted of another capital felony or
of a felony involving the use or threat of violence to the person—great weight; (3)
committed to disrupt or hinder the lawful exercise of any governmental function or
the enforcement of laws—great weight; (4) especially heinous, atrocious or cruel—
very great weight; [and] (5) . . . the victim of the capital felony was a law
enforcement officer engaged in the performance of his or her official duties—no
weight—merged with aggravator number 3 as listed above.” Hall I, 107 So. 3d at
270-71.


                                        -5-
opposed to the one remaining aggravator found in Wood. Secondly, three of the

remaining aggravators found in Hall’s case (i.e., under sentence of imprisonment,

previously convicted of another violent felony, and the victim was a law

enforcement officer) were without dispute. Thus as we stated in our harmless error

analysis in Hall II,

             Presuming that the jury did its job as instructed by the trial
      court, we are convinced that it would have still found the aggravators
      greatly outweighed the mitigators in this case. Indeed, it is
      inconceivable that a jury would not have found the aggravation in
      Hall’s case unanimously, especially given the fact that three of the
      aggravators found were automatic . . . .
212 So. 3d at 1035. It is also worth noting that this Court, in conducting its

harmless error analysis in Hall II, did not include the invalidated CCP aggravator

in its analysis. Id. Instead, we found that the Hurst error, as it related to Hall’s

case, was harmless, even without the stricken CCP aggravator. Id. Thus we

conclude that Wood is distinguishable from Hall’s case.

      Two other cases recently decided by our Court, Middleton and Cozzie, also

lend support to the postconviction court’s denial of this subclaim of Hall’s

successive postconviction motion.

      Middleton involved a unanimous jury recommendation of death, where this

Court ultimately struck the avoid arrest and CCP aggravators. 220 So. 3d at 1172.

There, we explained:




                                          -6-
             “When this Court strikes an aggravating factor on appeal, ‘the
      harmless error test is applied to determine whether there is no
      reasonable possibility that the error affected the sentence.’ ” Williams
      v. State, 967 So. 2d 735, 765 (Fla. 2007) (quoting Jennings v. State,
      782 So. 2d 853, 863 n.9 (Fla. 2001)); see also Diaz v. State, 860 So.
      2d 960, 968 (Fla. 2003) (“We find this error harmless, however, after
      consideration of the two remaining aggravating circumstances and the
      five mitigating circumstances in this case.”). Despite striking the
      avoid arrest and CCP aggravators, two valid aggravators remain in
      this unanimous death-recommendation case. The two aggravators
      which remain are that the murder was especially heinous, atrocious, or
      cruel (HAC) and that is was committed during the commission of a
      burglary and for pecuniary gain, which were each given “great
      weight” by the trial court.
Id. In finding that the error in Middleton was harmless, we noted that there was no

statutory mitigation and that “the trial court expressly stated that any of the

considered aggravating circumstances found in this case, standing alone, would be

sufficient to outweigh the mitigation in total presented.” Id.5 Thus because there

was no reasonable possibility that the erroneous aggravators contributed to

Middleton’s sentence, we ultimately concluded that any errors there were

harmless. Id.

      Hall’s case is similar to Middleton because significant aggravation remained,

even without the stricken CCP aggravator, that “far outweighed the mitigation.”

Hall I, 107 So. 3d at 271. Furthermore, three of the remaining aggravators present




     5. The trial court in Middleton found eleven nonstatutory mitigators, all of
which were afforded “some weight” or “little weight.” 220 So. 3d at 1173.


                                         -7-
in Hall are without and beyond dispute. The fourth aggravator that remains, HAC,

is one of the weightiest in Florida, see Jackson v. State, 18 So. 3d 1016, 1035 (Fla.

2009), and was afforded “very great weight” by the trial court. Thus we conclude,

as we have previously in Hall’s initial postconviction case, that any error in Hall’s

case, like the errors in Middleton, was harmless. See Hall II, 212 So. 3d at 1035-

36 (finding any Hurst error harmless).

      Similarly, in Cozzie, we determined that “[e]ven if the avoid arrest

aggravator were stricken . . . the unanimous death recommendation would still

remain, along with the aggravators of CCP, HAC, and in the course of a felony,

which are among the weightiest aggravators in our capital sentencing scheme.”

225 So. 3d at 729. Furthermore, the remaining aggravators in Cozzie were

afforded “great weight” by the trial court. Id.6 Thus we ultimately determined that

“any possible error was harmless because there was not a reasonable possibility

that [Cozzie] would have received a life sentence without the trial court finding of

the [avoid arrest] aggravator.” Id. (alterations in original) (quoting Aguirre-

Jarquin v. State, 9 So. 3d 593, 608 (Fla. 2009)).




      6. The trial court found one statutory mitigator and twenty-five nonstatutory
mitigators in Cozzie. Ultimately, the trial court, in weighing the aggravation and
mitigation in Cozzie, concluded that the aggravators “far outweighed” the
mitigators in sentencing Cozzie to death. 225 So. 3d at 726.


                                         -8-
      Hall has significant and weighty aggravation beyond the invalidated CCP

aggravator. Further, the trial court in both Cozzie and here concluded that the

aggravating circumstances “far outweigh[ed]” the mitigating circumstances. Id. at

725; see Hall I, 107 So. 3d at 271. Thus we conclude that Cozzie is factually

similar to Hall’s case.

      Both Hall and the dissent attempt to conflate nonbinding, dissenting

opinions with our binding post-Hurst death penalty precedent. However, as

discussed above, our binding precedent dictates our conclusion that Hall’s stricken

CCP aggravator is harmless beyond a reasonable doubt.

      We deny this subclaim of Hall’s successive postconviction motion.

                          Mental Health Mitigation Presentation

      We deny this subclaim in the successive postconviction motion because this

Court has already heard and addressed the mental health mitigation in Hall’s initial

postconviction motion. Thus this claim is procedurally barred. In addition, even

when considered on the merits, we conclude that this subclaim fails.

      In his initial postconviction motion, Hall extensively asserted the claim that

trial counsel was ineffective for not presenting mental health mitigation to the jury.

Similarly, in our opinion on Hall’s initial postconviction motion, we addressed the

issue and determined that the trial court’s ruling on counsel’s strategy was

supported by competent, substantial evidence. Hall II, 212 So. 3d at 1027-29.


                                          -9-
Thus we conclude that this subclaim is procedurally barred, as it was raised and

denied on Hall’s previous postconviction motion. See Hunter v. State, 29 So. 3d

256, 267 (Fla. 2008).

       Nevertheless, we also conclude that the subclaim should be denied on the

merits. Primarily, under Hurst harmless error, this Court must look to the potential

effect on the trier-of-fact, not on the potential effect on trial counsel’s trial strategy.

Hurst, 202 So. 3d at 68-69. Additionally, we have previously held that trial

counsel is not required to anticipate changes in the law to provide effective legal

representation. See Lebron v. State, 135 So. 3d 1040, 1054 (Fla. 2014) (“This

Court has ‘consistently held that trial counsel cannot be held ineffective for failing

to anticipate changes in the law.’ ” (quoting Cherry v. State, 781 So. 2d 1040, 1053

(Fla. 2000))). Furthermore, under Strickland v. Washington, 466 U.S. 668 (1984),

claims of ineffective assistance of counsel are assessed under the law in effect at

the time of the trial. Id. at 689. Thus we conclude that Hall’s subclaim also fails

on the merits.

                    Caldwell v. Mississippi, 472 U.S. 320 (1985).

       We deny this subclaim of Hall’s successive postconviction motion because it

fails on the merits. We have repeatedly rejected Caldwell challenges to the

advisory standard jury instructions in the past. See, e.g., Rigterink v. State, 66 So.

3d 866, 897 (Fla. 2011); Globe v. State, 877 So. 2d 663, 673-74 (Fla. 2004); Card


                                          - 10 -
v. State, 803 So. 2d 613, 628 (Fla. 2001); Sireci v. State, 773 So. 2d 34, 40 nn.9 &

11 (Fla. 2000); Teffeteller v. Dugger, 734 So. 2d 1009, 1026 (Fla. 1999); Brown v.

State, 721 So. 2d 274, 283 (Fla. 1998); Burns v. State, 699 So. 2d 646, 655 (Fla.

1997); Johnson v. State, 660 So. 2d 637, 647 (Fla. 1995). Additionally, as

discussed in detail in our recent opinion in Reynolds v. State, No. SC17-793 (Fla.

Apr. 5, 2018) (plurality opinion), we have now expressly rejected these post-Hurst

Caldwell claims. See also Franklin v. State, 43 Fla. L. Weekly S86 (Feb. 15,

2018). Thus we deny relief on this subclaim of Hall’s successive postconviction

motion.

                       Hall’s Sentence Violates Due Process

      We deny this subclaim of Hall’s successive postconviction motion because

we have already addressed a Hurst harmless error analysis as it pertains to Hall’s

case in Hall II. 212 So. 3d at 1033-36. Thus this subclaim is duplicative.

      Furthermore, the authority upon which Hall relies in support of his

argument, In re Winship, 397 U.S. 358 (1970), is not determinative. The United

States Supreme Court, in In re Winship, held that the State must prove all elements

of a crime in a juvenile delinquency proceeding beyond a reasonable doubt, just as

it would in an adult criminal proceeding, and that the failure to do so would result

in a due process violation. 397 U.S. at 367-68. We conclude that In re Winship is

distinguishable from Hall’s case, however, because Hall’s case does not concern a


                                        - 11 -
juvenile delinquency proceeding. Moreover, although Hurst did result in the

requirement that all aggravators and mitigators be proven beyond a reasonable

doubt, as we previously stated in Hall II, the error in Hall’s case was harmless. See

212 So. 3d at 1033-36 (discussing how the error was harmless due to Hall’s

unanimous death sentence). Thus we conclude that Hall’s death sentence does not

violate due process and thus hold that this subclaim is meritless.

              Hall’s Death Sentence Violates the Eighth Amendment

      We deny this claim of Hall’s successive postconviction motion because

there was no harmful error in this case. Hall II, 212 So. 3d at 1036. In Hurst, we

held that unanimity is required under the Eighth Amendment. Similarly, we have

determined that defendants whose sentences became final post-Ring and who

received unanimous jury recommendations are not entitled to Hurst relief if the

error is deemed to be harmless pursuant to Davis v. State, 207 So. 3d 142, 173-75

(Fla. 2016). Hall’s jury returned a unanimous recommendation, Hall I, 107 So. 3d

at 270, his sentence became final after Ring, see Hall v. Florida, 134 S. Ct. 203,

and the Hurst error was harmless. Therefore, we deny this claim of Hall’s

successive postconviction motion.

                                 Hall’s Indictment

      Finally, Hall’s argument with regard to his indictment also fails. Hall argues

that he was denied his right to a proper indictment because the grand jury


                                        - 12 -
indictment in his case did not list the aggravators. However, “this Court has

repeatedly rejected the argument that aggravating circumstances must be alleged in

the indictment.” Pham v. State, 70 So. 3d 485, 496 (Fla. 2011) (citing Rogers v.

State, 957 So. 2d 538, 554 (Fla. 2007); Coday v. State, 946 So. 2d 988, 1006 (Fla.

2006); Ibar v. State, 938 So. 2d 451, 473 (Fla. 2006); Blackwelder v. State, 851 So.

2d 650, 654 (Fla. 2003); Kormondy v. State, 845 So. 2d 41, 54 (Fla. 2003)).

Nothing in Hurst indicates that our holding impacted this settled point of law; and

we have also held prior to Hurst that “neither Apprendi nor Ring requires that

aggravating circumstances be charged in the indictment.” Rogers, 957 So. 2d at

554. Therefore, Hall’s indictment claim fails.

                                 CONCLUSION

      For the reasons set forth above, we affirm the postconviction court’s order

denying Hall relief on his successive motion for postconviction relief.

      It is so ordered.

LABARGA, C.J., and LEWIS and LAWSON, JJ., concur.
CANADY and POLSTON, JJ., concur in result.
PARIENTE, J., dissents with an opinion, in which QUINCE, J., concurs.

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




                                       - 13 -
PARIENTE, J., dissenting.

      In Hall v. State (Hall II), 212 So. 3d 1001 (Fla. 2017), this Court denied Hall

relief under Hurst7 based on the jury’s unanimous recommendation for death. 212

So. 3d at 1035.8 That opinion, which focused solely on the jury’s unanimous

recommendation for death, did not discuss the effect of the stricken cold,

calculated, and premeditated (CCP) aggravator on the Hurst harmless error

analysis.

      In Hall II, I concurred in result without an opinion, and Justice Quince

dissented as to the majority’s denial of Hurst relief, explaining that some of the

aggravating factors required a factual determination that this Court could not

assume the jury made unanimously despite the jury’s unanimous recommendation

for death. 212 So. 3d at 1036-37 (Quince, J., concurring in part and dissenting in

part). Concurring in result in Hall II, I did not consider the effect of the stricken

CCP aggravator on this Court’s Hurst harmless error analysis.




      7. 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).
       8. Despite having already denied Hall Hurst relief, this Court has addressed
more than one request for Hurst relief from multiple defendants based on
alternative arguments under the Sixth and Eighth Amendments. See Hitchcock v.
State, 226 So. 3d 216, 217 n.2 (Fla.), cert. denied, 138 S. Ct. 513 (2017).


                                         - 14 -
       In this case, the per curiam opinion addresses the stricken CCP aggravating

factor and finds our opinion in Wood v. State, 209 So. 3d 1217 (Fla. 2017),

distinguishable. Per curiam op. at 5-6. Although Wood’s death sentence was

reversed on proportionality grounds, Wood, 209 So. 3d at 1221, as I explained on

rehearing in Middleton v. State, 42 Fla. L. Weekly S637, 2017 WL 2374697 (Fla.

June 1, 2017), this Court’s opinion in Wood supports the conclusion that a stricken

aggravating factor affects the Hurst harmless error analysis. Id. at S637-38, *1

(Pariente, J., dissenting).

       In Wood, this Court stated: “Our inquiry post-Hurst must necessarily be the

effect of any error on the jury’s findings, rather than whether beyond a reasonable

doubt the trial judge would have still imposed death.” 209 So. 3d at 1233.

Applying this statement on rehearing in Middleton, I explained the “serious[]

flaw[]” in the majority’s harmless error analysis:

       Instead of focusing on the effect of the error on the jury, the majority
       opinion conducted an erroneous and contradictory harmless error
       analysis that did not consider the effect of striking two of the four
       aggravating factors—avoid arrest and CCP—on the jury and instead
       focused on the effect the improper aggravators had on the trial
       court. . . . When the correct harmless error analysis, pursuant to our
       precedent, is conducted, I conclude that Middleton is entitled to a new
       penalty phase.
              Without even referencing, much less considering, the two
       stricken aggravators, the majority relied only on the jury’s unanimous
       verdict to determine that the Hurst error in Middleton’s case was
       harmless beyond a reasonable doubt. Regardless of whether the
       failure to consider the effect of the two stricken aggravators on the
       jury was an oversight, it is clear that the analysis is incomplete.

                                        - 15 -
Middleton, 42 Fla. L. Weekly at S638, 2017 WL 2374697, at *1 (Pariente, J.,

dissenting) (citations omitted) (emphasis added). Like in Middleton, in denying

Hall Hurst relief in Hall II, this Court did not consider the effect of the stricken

CCP aggravating factor. Per curiam op. at 6.

      As I also explained in Middleton, a stricken aggravating factor significantly

affects the Hurst harmless error analysis:

              Indeed, the essence of the United States Supreme Court’s
      decision in Hurst v. Florida, 136 S. Ct. 616 (2016), was refocusing
      Florida’s capital sentencing scheme on the jury . . . . Id. at 624. As
      this Court stated in DiGuilio v. State, 491 So. 2d 1129 (Fla. 1986),
      “Harmless error is not a device for the appellate court to substitute
      itself for the trier-of-fact by simply weighing the evidence. The focus
      is on the effect of the error on the trier-of-fact.” Id. at 1139.
      Therefore, in determining whether the Hurst error . . . was harmless
      beyond a reasonable doubt, we must focus on how the stricken
      aggravating factors could have affected the jury’s recommendation for
      death. . . .
              Because the jury . . . was instructed on the . . . aggravating
      factors that this Court determined were not supported by competent,
      substantial evidence, this Court must consider the impact that the
      inappropriate aggravating factors had on the jury’s ultimate verdict in
      determining whether the Hurst error was harmless beyond a
      reasonable doubt. Despite the jury’s unanimous recommendation for
      death, this Court has no way of knowing that the jury would have
      reached the same verdict if it had been instructed on only the . . .
      valid aggravators. . . . Nor can we assume that the jury would have
      unanimously found the remaining aggravators sufficient to impose
      death or unanimously found that the aggravation (without the two
      stricken aggravating factors) outweighed the mitigation.
              In short, it is sheer speculation to assume that even without [the
      stricken] aggravators, the jury would have still unanimously
      recommended death. Thus, the Court is in no position to conclude


                                         - 16 -
      that the unanimous jury recommendation renders the Hurst error
      harmless beyond a reasonable doubt.

Middleton, 42 Fla. L. Weekly at S638, 2107 WL 2374697, at *2 (Pariente, J.,

dissenting) (emphasis added) (citations omitted).

      Likewise, in Hall’s case, this Court has no way of knowing whether the

unsupported CCP aggravating factor contributed to the jury’s unanimous

recommendation for death, or whether it affected the jury’s conclusion that the

aggravating factors were sufficient to impose death and that the aggravation

outweighed the mitigation. See Hurst, 202 So. 3d at 44. In fact, the stricken

aggravating factor in Hall’s case “is among the most serious aggravators set out in

the statutory sentencing scheme.” Wood, 209 So. 3d at 1228 (quoting Deparvine v.

State, 995 So. 2d 351, 381 (Fla. 2008)). Thus, I would conclude that because of

the stricken CCP aggravating factor in Hall’s case, the State cannot establish that

the Hurst error is harmless beyond a reasonable doubt and would grant Hall a new

penalty phase.

      Accordingly, I dissent.

QUINCE, J., concurs.

An Appeal from the Circuit Court in and for Volusia County,
     Raul A. Zambrano, Judge - Case No. 642008CF033412XXXAES

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,


                                        - 17 -
      for Appellant

Pamela Jo Bondi, Attorney General, Tallahassee, Florida, and Doris Meacham,
Assistant Attorney General, Daytona Beach, Florida,

      for Appellee




                                     - 18 -
