By Rene Stutzman and Gal Tziperman Lotan
Orlando Sentinel
TALLAHASSEE, Fla. — The Florida Supreme Court on Wednesday threw out the death penalty of a man convicted of murdering a state prison guard, ruling that because his jury did not unanimously recommend a death sentence, he must be resentenced by a new jury.
The ruling could have implications for others on Florida’s death row who were sent there following a jury vote that was not unanimous, though it’s uncertain how big that impact will be.
It was not immediately clear how many of the 385 inmates on Florida’s death row had non-unanimous sentencing verdicts. Spokespeople with the Florida Department of Corrections, Attorney General’s Office, and Florida Supreme Court all said their offices do not keep track of the number. The state’s Commission on Capital Cases used to do so before it was defunded in 2011.
The Florida Supreme Court has yet to decide whether recent rulings apply to all death row inmates or only to the ones going through their first rounds of automatic appeals, said Martin McClain, a South Florida attorney who deals with capital cases. Most death row inmates are past that stage, he said.
Still, the ruling could give some inmates another avenue, he said.
“I try not to read too much into any one decision, but that language is there,” he said.
Wednesday’s ruling is the latest in a string of appeals court opinions that have found Florida’s death penalty to be unconstitutional, including a rewrite by the Florida Legislature in March and April.
The reforms started in January, when the U.S. Supreme Court ruled that Florida’s death penalty was unconstitutional because it failed to require jurors — instead of judges — to make the final decision on whether a convicted murderer should get the death penalty.
The Florida Legislature revised the statute and Gov. Rick Scott signed it into law, but the new measure failed to require a unanimous jury vote.
Legislators said a 10-2 vote was good enough.
That left Florida as one of two states that did not require a unanimous death recommendation from juries.
Wednesday’s 7-0 ruling by the Florida Supreme Court was a new rejection of the Legislature’s decision. Last month it made a similar ruling.
In Orange and Osceola counties, the ruling likely won’t have much of an impact unless the courts decide it should apply to inmates past their first appeals, Assistant State Attorney Ken Nunnelley said. If they do, 22 death row inmates could get new sentencing hearings.
“It’s going to depend on how they decide the retroactivity issue in those cases, and I would not hazard a guess on what they’re going to do,” he said. “It’s not an enormous number that [Wednesday’s decision] is going to impact, at least as the opinion stands right now.”
The appellant involved in Wednesday’s decision is Richard P. Franklin, who was already imprisoned on two murder charges when he repeatedly stabbed a guard, Sgt. Ruben Thomas, with a handmade knife in 2012. Thomas died, and a jury decided, in a 9-3 vote, that Franklin should be executed.
Now, Franklin will have a sentencing hearing in front of a new jury. The jury will not have to decide whether he is guilty, only whether he should be put to death.
“He’s convicted, and that conviction stands,” said Orlando attorney J. Edwin Mills, who handles capital cases. “There is going to be a lot of the testimony and evidence that’s going to have to be reintroduced, reheard, and reconsidered by a new jury.”
Mills, who is representing a St. Cloud man named Larry Perry in the killing of his infant son more than three years ago, said he thinks the death penalty ruling is the strongest yet to come from Florida Supreme Court.
“They hadn’t gone quite this far yet. They seem to be inching closer to where we think they ought to be,” he said.
In January, when it declared the Florida capital sentencing scheme unconstitutional, the justices on the U.S. Supreme Court left it to the Florida Supreme Court to determine how many inmates and defendants should be affected.
The Tallahassee court has been providing the answer in bits and pieces. Last month, on the same day it declared the new death penalty statute unconstitutional, it concluded that a Pensacola killer deserved a new sentencing hearing because a jury had voted 7-to-5 in favor of death — not 12-0.
It did not, however, make clear whether other death row inmates in the same circumstance also should be resentenced.
Today’s ruling, Ninth Circuit Public Defender Robert Wesley said, seemed to make that clear, and the answer is yes.
A non-unanimous jury recommendation in “any” case in which a judge — instead of a jury — identified the reasons a killer should be put to death is both unconstitutional and causes harm, the court wrote.
It was the court’s use of the word “any” that could give the court a wider berth moving forward.
Wesley said that with that opinion, the Florida Supreme Court had signaled it was prepared to vacate all Florida death sentences in cases with a jury vote that was not 12-0.
Florida has not executed anyone since Jan. 7 because of uncertainty about the soundness of its death penalty statute.