Jonathan Huey Lawrence v. State of Florida

          Supreme Court of Florida
                                   No. SC18-2061
                                   ____________

                       JONATHAN HUEY LAWRENCE,
                               Appellant,

                                         vs.

                              STATE OF FLORIDA,
                                   Appellee.

                                  October 29, 2020

PER CURIAM.

      Jonathan Huey Lawrence appeals his sentence of death for the 1998 first-

degree murder of Jennifer Robinson that was imposed in a 2018 resentencing

proceeding. We have jurisdiction, see art. V, § 3(b)(1), Fla. Const., and affirm. As

is more fully explained below, although Lawrence’s original death sentence was

determined to be proportional based on substantially the same evidence presented

during the de novo resentencing proceeding at issue, Lawrence argues on appeal

that his sentence of death is not proportional. The State argues that this Court is

legally prohibited, by the Florida Constitution, from reviewing death sentences for

comparative proportionality when that review is not authorized by statute. We

agree with the State and hold that the conformity clause of article I, section 17 of
the Florida Constitution forbids this Court from analyzing death sentences for

comparative proportionality in the absence of a statute establishing that review.

                                 BACKGROUND

      In 2000, Lawrence pleaded guilty to principal to the first-degree murder of

Robinson, conspiracy to commit first-degree murder, giving alcoholic beverages to

a person under twenty-one, and abuse of a dead human corpse, and he was

sentenced to death for Robinson’s murder. Lawrence v. State, 846 So. 2d 440, 442

(Fla. 2003). Robinson’s murder followed two separate criminal episodes in which

Lawrence and his codefendant murdered one individual and attempted to murder

another individual. See id. at 443 n.3. We detailed the facts of Robinson’s murder

on direct appeal, explaining that Lawrence and his codefendant, who was also

convicted of first-degree murder and sentenced to death for Robinson’s murder,

carried out their crimes against Robinson in accordance with notes in Lawrence’s

handwriting:

      Lawrence’s codefendant, Jeremiah Martel Rodgers, picked up
      eighteen-year-old Jennifer Robinson from her mother’s home on May
      7, 1998. Rodgers and Robinson met Lawrence, and all three drove in
      Lawrence’s truck to a secluded area in the woods. After imbibing
      alcoholic beverages, Robinson had sex with Rodgers and then with
      Lawrence. At some point thereafter, Rodgers shot Robinson in the
      back of the head using Lawrence’s Lorcin .380 handgun. The gunshot
      rendered Robinson instantly unconscious, and she died minutes later.
      Lawrence and Rodgers loaded Robinson’s body into Lawrence’s truck
      and drove further into the woods. Lawrence made an incision into
      Robinson’s leg and removed her calf muscle. Rodgers took Polaroid



                                        -2-
      pictures of the body, including a picture of Lawrence’s hand holding
      Robinson’s foot. Lawrence and Rodgers buried Robinson at that site.
             Investigators traced Robinson’s disappearance to Lawrence and
      Rodgers. When confronted by Investigator Todd Hand, Lawrence
      denied knowing Robinson and consented to Hand’s request to search
      Lawrence’s trailer and truck. After recovering multiple notes written
      by Lawrence and Polaroid photographs depicting Robinson post-
      mortem, Hand arrested Lawrence. One page of the recovered notes
      states in part: “get her very drunk,” “yell in her ears to check
      consicouse [sic],” “even slap hard,” “[r]ape many, many, many
      times,” “ ‘slice and dice,’ [d]isect [sic] completely,” “bag up eatabile
      [sic] meats,” and “bag remains and bury and burn.” Another page of
      notes provides a list of items and tasks, some of which had been
      checked off or scribbled out. That list includes “coolers of ice = for
      new meat,” strawberry wine, everclear alcohol, scalpels, Polaroid
      film, and “.380 or-and bowies [knives].” Other items located by
      investigators during their search of Lawrence’s trailer and truck
      included a box for a Lorcin .380 handgun; empty Polaroid film
      packages; a piece of human tissue in Lawrence’s freezer; a blue and
      white ice chest; an empty plastic ice bag; disposable gloves; a
      scrapbook; and several books, including an anatomy book []titled The
      Incredible Machine, within which had been marked female anatomy
      pages and pen lines drawn at the calf section of a leg. Lawrence
      subsequently confessed to his involvement, after waiving his Miranda
      [v. Arizona, 384 U.S. 436 (1966)] rights, and led detectives to
      Robinson’s body.

Id. at 442-43 (footnotes omitted). On direct appeal, Lawrence appealed only his

sentence of death, and we affirmed, id. at 446, including on the basis that

Lawrence’s death sentence was proportionate in comparison to other cases in

which we have upheld the imposition of the death penalty, id. at 452-55.

      We subsequently affirmed the denial of Lawrence’s initial postconviction

motion and denied his habeas petition. Lawrence v. State, 969 So. 2d 294, 315

(Fla. 2007).

                                        -3-
      Thereafter, the trial court granted Lawrence’s successive postconviction

motion, vacated his death sentence, and ordered a new penalty phase proceeding

pursuant to Hurst v. State, 202 So. 3d 40 (Fla. 2016), receded from by State v.

Poole, 297 So. 3d 487 (Fla. 2020).

      Before the second penalty-phase proceeding, which is at issue here, began,

Lawrence sent a handwritten letter to the trial court requesting that his death

sentence be “reinstated,” stating in pertinent part:

      [M]ay I request to please have my death sentence reinstated? I’ve
      never wanted a new trial or anything to do with the Hurst
      hearing/ruleing [sic] and have been trying for ten years to have my
      last attorney . . . drop all my appeals but he has completely ignored
      me and refused any form of communications with me until telling me
      my new attorney’s names and that I’m to go . . . for a new sentencing
      that I do not want. I’m guilty of all my charges and deserve my death
      sentence. I’ve had no intention of putting the families, friends and
      loved ones of the innocent people I deliberately helped murder
      through all these 20 long years of grief, suffering and loss, to have to
      indure [sic] more. They deserve justice and every amount of peace
      my death sentence and conclusion might give them.

      Through appointed counsel, Lawrence subsequently moved to waive his

rights to a penalty-phase jury, to present mitigation, and to challenge the State’s

evidence. After inquiring of Lawrence and hearing testimony from a doctor who

had evaluated Lawrence and found him competent, the trial court found

Lawrence’s waivers to be knowing, intelligent, and voluntary. The trial court

ordered a presentence investigation and appointed special counsel pursuant to




                                         -4-
Marquardt v. State, 156 So. 3d 464 (Fla. 2015), to assist it in considering available

mitigation.

      Thereafter, following the State’s penalty-phase presentation and special

counsel’s presentation at a subsequent hearing that also served as a Spencer1

hearing, the trial court sentenced Lawrence to death, finding that the aggravating

circumstances 2 “greatly outweigh” the statutory and nonstatutory mitigating

circumstances. 3 In sentencing Lawrence to death, the trial court further found as

follows:



      1. Spencer v. State, 615 So. 2d 688 (Fla. 1993).

       2. The trial court found that the State had proven two statutory aggravating
circumstances beyond a reasonable doubt and assigned both of them great weight:
(1) the defendant was previously convicted of another capital felony or of a felony
involving the use or threat of violence to the person; and (2) the murder was
committed in a cold, calculated, and premeditated manner.

      3. The trial court found and assigned moderate weight to two statutory
mitigating circumstances: (1) the capital felony was committed while Lawrence
was under the influence of extreme mental or emotional disturbance; and (2) the
capacity of Lawrence to appreciate the criminality of his conduct or to conform his
conduct to the requirements of law was substantially impaired.

       The trial court also found four nonstatutory mitigating circumstances to
which it assigned the noted weight: (1) the defendant told the probation officer that
he is mainly guilty and feels like he deserves to die (slight weight); (2) the
defendant was raised in an abusive and dysfunctional home (slight weight); (3) the
defendant cooperated with the police in locating the scene of the crime and the
body (slight weight); and (4) the defendant’s history of mental health problems that
do not rise to the level of statutory mitigation (moderate weight).


                                        -5-
              The Court has carefully considered and weighed the
      aggravating and mitigating circumstances found to exist in this
      penalty phase. The State has proven beyond and to the exclusion of
      every reasonable doubt the existence of two serious aggravators. The
      prior violent felony aggravator was given great weight due to the fact
      that both prior offenses were committed prior to the murder of
      Jennifer Robinson, were committed with the co-defendant, Rodgers,
      and involved murder and attempted murder. Both of these prior
      crimes were senselessly violent and without any moral or legal
      justification. They are indicative of the same total disregard for
      human life evidenced in this case. In each case, Lawrence and
      Rodgers killed or attempted to kill another human being. In addition,
      the cold, calculated, and premeditated aggravator was given great
      weight due to Lawrence’s significant involvement in the planning,
      preparation, and execution of the murder.
              The Court finds that these two aggravators greatly outweigh all
      of the statutory and non-statutory mitigating circumstances, inclusive
      of the significant mental mitigation.

                                    ANALYSIS

      On appeal, Lawrence argues that his death sentence is disproportionate in

comparison to other cases in which the sentence of death has been imposed. The

State urges us to recede from precedent holding that we must review the

comparative proportionality of every death sentence to “ensure uniformity of

sentencing in death penalty proceedings,” Rogers v. State, 285 So. 3d 872, 891

(Fla. 2019), by reserving the death penalty “for only the most aggravated and least

mitigated of first-degree murders.” Id. at 892 (quoting Urbin v. State, 714 So. 2d

411, 416 (Fla. 1998)); see also Fla. R. App. P. 9.142(a)(5) (providing that the

Court shall review proportionality on direct appeal whether or not the issue is

presented by the parties). In support of its argument, the State contends that

                                        -6-
comparative proportionality review violates the conformity clause of article I,

section 17 of the Florida Constitution. We agree with the State and write to

explain why our precedent is erroneous and must yield to our constitution.

  The Florida Constitution Precludes Comparative Proportionality Review

      The conformity clause of article I, section 17 of the Florida Constitution

provides that “[t]he prohibition against cruel or unusual punishment, and the

prohibition against cruel and unusual punishment, shall be construed in conformity

with decisions of the United States Supreme Court which interpret the prohibition

against cruel and unusual punishment provided in the Eighth Amendment to the

United States Constitution.” The Supreme Court has held that comparative

proportionality review of death sentences is not required by the Eighth

Amendment. Pulley v. Harris, 465 U.S. 37, 50-51 (1984) (“There is . . . no basis

[in Supreme Court case law] for holding that comparative proportionality review

by an appellate court is required in every case in which the death penalty is

imposed and the defendant requests it.”).

      In Yacob v. State, 136 So. 3d 539, 546-49 (Fla. 2014), this Court addressed

whether our state-law precedent requiring comparative proportionality review

survived the addition of the conformity clause to article I, section 17 of the Florida

Constitution in 2002. In holding that it did, Yacob sourced the requirement for

comparative proportionality review from three other provisions of Florida law



                                         -7-
outside of article I, section 17. Specifically, Yacob held that comparative

proportionality review “flows from Florida’s capital punishment statute—section

921.141, Florida Statutes,” Yacob, 136 So. 3d at 546, from the due process clause

of article I, section 9 of the Florida Constitution, id. at 549, and from article V,

section 3(b)(1) of the Florida Constitution, which grants this Court mandatory,

exclusive jurisdiction over appeals from final judgments of trial courts imposing

the death penalty, id. at 547. None of these provisions, however, requires the

comparative proportionality review that we have held to be required and codified

in our procedural rules as within the scope of our appellate review. See Fla. R.

App. P. 9.142(a)(5).

      Comparative proportionality review is not referenced anywhere in the text of

section 921.141, Florida Statutes (2019). Yet, Yacob read this requirement into the

portion of the statute which provides that “[t]he judgment of conviction and

sentence of death shall be subject to automatic review” by this Court “in

accordance with rules adopted by” this Court. § 921.141(5), Fla. Stat. (2019); see

Yacob, 136 So. 3d at 546 (quoting then-subsection (4) of the statute for this

proposition). In support of this conclusion, Yacob reasoned that this Court had

previously “interpreted section 921.141 as including proportionality review of

death sentences” in State v. Dixon, 283 So. 2d 1, 10 (Fla. 1973). Yacob, 136 So. 3d




                                          -8-
at 546. However, Dixon did no such thing. Rather, as Justice Canady explained in

dissenting from this portion of the Yacob decision,

      Dixon—which upheld Florida’s capital punishment statute against a
      constitutional challenge—contemplated that in any case where “a
      defendant is sentenced to die, this Court can review that case in light
      of the other decisions [imposing sentences of death] and determine
      whether or not the punishment is too great.” 283 So. 2d at 10. The
      reasoning of Dixon, however, does not in any way tie this comparative
      review to a provision of section 921.141. Instead, the comparative
      review envisioned by Dixon can only reasonably be understood as a
      judicial-created means to ensure that the statute would be
      implemented in a way that would avoid the constitutional concerns
      articulated in Furman v. Georgia, 408 U.S. 238, 92 S. Ct. 2726, 33 L.
      Ed. 2d 346 (1972), concerns which were rooted in the prohibition on
      cruel and unusual punishments. The Dixon court understood that such
      comparative review would be consistent with the statute, but that is
      different from concluding that the statute requires or specifically
      authorizes comparative proportionality review.

Yacob, 136 So. 3d at 561 (Canady, J., concurring in part and dissenting in part).

      The Yacob Court also relied on our pre-conformity clause decision in

Tillman v. State, 591 So. 2d 167 (Fla. 1991), which cited two provisions of the

Florida Constitution in addition to article I, section 17 as requiring comparative

proportionality review. These provisions were the due process clause of article I,

section 9, and the provision granting this court mandatory, exclusive jurisdiction

over appeals from final judgments of trial courts imposing the death penalty—

article V, section (3)(b)(1). See Yacob, 136 So. 3d at 547, 549 (citing Tillman’s

reliance on article V, section 3(b)(1) and article I, section 9 for comparative




                                         -9-
proportionality review). However, neither provision imposes any such requirement

for the reasons Justice Canady explained in dissenting from this portion of Yacob:

              Tillman states that the “obvious purpose” of our mandatory
      jurisdiction “is to ensure the uniformity of death-penalty law by
      preventing the disagreement over controlling points of law that may
      arise when the district courts of appeal are the only appellate courts
      with mandatory appellate jurisdiction.” [Tillman, 591 So. 2d at 169];
      see art. V, § 3(b)(1), Fla. Const. But “preventing the disagreement
      over controlling points of law” does not require comparative
      proportionality review. Furthermore, the jurisdictional provision is
      purely a matter of procedure; it does nothing to substantively define
      the review undertaken by the court. Tillman’s reliance on this
      jurisdictional provision as a basis for proportionality review is
      untenable.
              It is no more tenable to skirt the conformity clause by
      proclaiming that comparative proportionality review is required by the
      due process clause rather than by the prohibition on cruel and unusual
      punishments. Under the federal Constitution, “the Eighth
      Amendment’s Cruel and Unusual Punishments Clause [is] made
      applicable to the States by the Due Process Clause of the Fourteenth
      Amendment.” Graham [v. Florida, 560 U.S. 48, 53 (2010)]. The
      prohibition on cruel and unusual punishments thus is a particular
      aspect of due process. And the conformity clause expressly limits the
      authority of this Court with respect to that aspect of due process. To
      conclude otherwise is to treat the conformity clause as meaningless
      for all practical purposes.

Yacob, 136 So. 3d at 561-62 (Canady, J., concurring in part and dissenting in part).

      The only legitimate state-law source for comparative proportionality review

was the prohibition against cruel and unusual punishment found in article I, section

17 of the Florida Constitution—before the conformity clause was added to that

provision in 2002. See Yacob, 136 So. 3d at 560-61 (Canady, J., concurring in part

and dissenting in part) (summarizing this Court’s “repeated reliance on the cruel

                                       - 10 -
and unusual punishments prohibition as the basis for our proportionality review”).

Post-conformity clause, we have wrongly continued to enforce a state-law

requirement for comparative proportionality review and have wrongly written this

requirement into our procedural rules governing the scope of our appellate review.

See Amendments to the Fla. Rules of Appellate Procedure, 894 So. 2d 202, 204,

218-19 (Fla. 2005) (adding a proportionality review requirement to rule 9.142 to

“make the rule consistent with this Court’s practice” concerning the scope of its

appellate review).

      When confronted with the issue in Yacob, this Court should have held that a

judge-made comparative proportionality review requirement violates article I,

section 17 of the Florida Constitution in light of the Supreme Court’s precedent

establishing that comparative proportionality review is not required by the Eighth

Amendment, see Pulley 465 U.S. at 50-51. We cannot judicially rewrite our state

statutes or constitution to require a comparative proportionality review that their

text does not. See art. II, § 3, Fla. Const. Nor can we ignore our constitutional

obligation to conform our precedent respecting the Florida Constitution’s

prohibition against cruel and unusual punishment to the Supreme Court’s Eighth

Amendment precedent by requiring a comparative proportionality review that the

Supreme Court has held the Eighth Amendment does not. See art. I, § 17, Fla.

Const. Yacob wrongly did both.



                                        - 11 -
                 Yacob Must Yield to the Florida Constitution

      The State argues that we should recede from Yacob. We recently explained

“the proper approach to stare decisis” as follows:

      In a case where we are bound by a higher legal authority—whether it
      be a constitutional provision, a statute, or a decision of the Supreme
      Court—our job is to apply that law correctly to the case before us.
      When we are convinced that a precedent clearly conflicts with the law
      we are sworn to uphold, the precedent normally must yield.
             We say normally because “stare decisis means sticking to some
      wrong decisions.” Kimble v. Marvel Entertainment, LLC, 135 S. Ct.
      2401, 2409 (2015). “Indeed, stare decisis has consequence only to the
      extent it sustains incorrect decisions; correct judgments have no need
      for that principle to prop them up.” Id. But once we have chosen to
      reassess a precedent and have come to the conclusion that it is clearly
      erroneous, the proper question becomes whether there is a valid
      reason why not to recede from that precedent.
             The critical consideration ordinarily will be reliance. It is
      generally accepted that reliance interests are “at their acme in cases
      involving property and contract rights.” Payne v. Tennessee, 501 U.S.
      808, 828 (1991). And reliance interests are lowest in cases . . .
      “involving procedural and evidentiary rules.” Id.; see also Alleyne,
      570 U.S. at 119 (Sotomayor, J., concurring) (“[W]hen procedural
      rules are at issue that do not govern primary conduct and do not
      implicate the reliance interests of private parties, the force of stare
      decisis is reduced.”).

Poole, 297 So. 3d at 507.

      Viewing our erroneous decision in Yacob through this lens, we fail to find “a

valid reason why not to recede from” it. Poole, 297 So. 3d at 507. In light of the

Supreme Court’s decision in Pulley, the conformity clause expressly forecloses this

Court’s imposition of a comparative proportionality review requirement that is




                                       - 12 -
predicated on the Eighth Amendment. 4 The reliance interests of death-sentenced

defendants on this Court’s comparative proportionality review are low to

nonexistent, as defendants do not alter their behavior in expectation of such

review. In contrast, victims and the State have strong interests in this Court’s

upholding death sentences obtained in compliance with section 921.141.

      Moreover, there is no reason to continue to apply erroneous precedent that,

though well-intentioned, 5 relies on perceived deficiencies in section 921.141 that

do not exist. See Yacob, 136 So. 3d at 549 n.2. Florida’s death penalty statute



       4. We note, however, that Florida’s conformity clause does not preclude the
Legislature from requiring comparative proportionality review of death sentences
by statute. Although the State argued to the contrary in its brief, at oral argument,
the State appeared to concede the point that our conformity clause is not so broadly
worded as to preclude a statutory requirement for comparative proportionality
review. Indeed, other state legislatures have mandated comparative proportionality
review by statute. See, e.g., State v. Wood, 580 S.W.3d 566, 590 (Mo. 2019)
(explaining that section 565.035.3., Mo. Rev. Stat., “imposes an independent duty
on [the Supreme Court of Missouri] to undertake a proportionality review to
determine,” among other things, “(3) [w]hether the sentence of death is excessive
or disproportionate to the penalty imposed in similar cases, considering both the
crime, the strength of the evidence and the defendant”). We express no opinion as
to whether the Florida Legislature should adopt such a requirement; we simply
note that the State is incorrect to the extent it contends that the Florida Legislature
could not do so.

       5. We recognize our valued colleague’s dissent and its argument that
reviewing death sentences for comparative proportionality would be good policy.
Even were we to agree with the dissent’s policy analysis, however, we would still
be sworn to follow our constitution—which does not permit the result for which
the dissent argues.


                                        - 13 -
comports with due process; it has been amended since Yacob to comply with

federal and state constitutional requirements regarding death-eligibility, see

§ 921.141(3); 6 it provides adequate safeguards against the arbitrary and capricious

imposition of the death penalty; and, since Yacob, it has been amended to exceed

what the federal and state constitutions require by mandating (in non-jury-waiver

cases) that the jury’s recommendation for death be unanimous, see

§ 921.141(2)(c). 7




       6. See also McKinney v. Arizona, 140 S. Ct. 702, 707 (2020) (“Under Ring
[v. Arizona, 536 U.S. 584 (2002),] and Hurst [v. Florida, 136 S. Ct. 616 (2016)], a
jury must find the aggravating circumstance that makes the defendant death
eligible. But importantly, in a capital sentencing proceeding, just as in an ordinary
sentencing proceeding, a jury (as opposed to a judge) is not constitutionally
required to weigh the aggravating and mitigating circumstances or to make the
ultimate decision within the relevant sentencing range.”); Poole, 297 So. 3d at 507
(“reced[ing] from Hurst v. State except to the extent it requires a jury unanimously
to find the existence of a statutory aggravating circumstance beyond a reasonable
doubt”).

       7. See also Poole, 297 So. 3d at 504 (“[T]he Sixth Amendment, as
interpreted in Spaziano [v. Florida, 468 U.S. 447, 465 (1984)], does not require
any jury recommendation of death, much less a unanimous one. . . . [W]e further
erred in Hurst v. State when we held that the Eighth Amendment requires a
unanimous recommendation of death. The Supreme Court rejected that exact
argument in Spaziano.”); id. at 505 (holding that Hurst v. State erred in concluding
that a unanimous jury recommendation is required by article I, section 22 of the
Florida Constitution governing the right to a jury trial, and further holding that
“our state constitution’s prohibition on cruel and unusual punishment, article I,
section 17, does not require a unanimous recommendation—or any jury
recommendation—before a death sentence can be imposed” (footnote omitted)).


                                        - 14 -
      Accordingly, we recede from Yacob’s requirement to review death sentences

for comparative proportionality and thus eliminate comparative proportionality

review from the scope of our appellate review set forth in rule 9.142(a)(5).

                                  CONCLUSION

      For the foregoing reasons, we decline to review Lawrence’s claim that his

death sentence is disproportionate and affirm his sentence of death.8

      It is so ordered.

CANADY, C.J., and POLSTON, LAWSON, MUÑIZ, and COURIEL, JJ., concur.
LABARGA, J., dissents with an opinion.
GROSSHANS, J., did not participate.

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




       8. We note that, in addition to challenging the proportionality of his death
sentence, Lawrence raises the meritless claim that the trial court fundamentally
erred in sentencing him to death because it did not determine beyond a reasonable
doubt the sufficiency of the aggravating factors and whether they outweighed the
mitigating circumstances. We have repeatedly rejected this claim in cases where
the defendant did not waive the right to a penalty-phase jury. See Newberry v.
State, 288 So. 3d 1040, 1047 (Fla. 2019) (rejecting fundamental-error claim
because the sufficiency and weighing determinations “are not subject to the beyond
a reasonable doubt standard of proof”) (citing Rogers, 285 So. 3d at 886). The
same fundamental-error claim is equally meritless in this case, where Lawrence
waived the right to a penalty-phase jury. See § 921.141(3)(b), Fla. Stat. (2018)
(subjecting only the trial court’s finding of the existence of at least one aggravating
factor to the beyond a reasonable doubt standard of proof); see also supra note 6.

                                        - 15 -
LABARGA, J., dissenting.

      Today, the majority takes the most consequential step yet in dismantling the

reasonable safeguards contained within Florida’s death penalty jurisprudence—a

step that eliminates a fundamental component of this Court’s mandatory review in

direct appeal cases.

                   The Majority’s Recent Decisions in Context

      I cannot overstate how quickly and consequentially the majority’s decisions

have impacted death penalty law in Florida. On January 23, 2020, this Court

decided State v. Poole, 297 So. 3d 487 (Fla. 2020). As I noted in my dissent in

Poole, despite the clearly defined historical basis for requiring unanimous jury

verdicts in Florida, this Court receded from the requirement that juries must

unanimously recommend that a defendant be sentenced to death. Poole, 297 So.

3d at 513 (Labarga, J., dissenting). After 2016, only the state of Alabama

permitted a nonunanimous (10-2) jury recommendation. 9 Poole paved the way for

Florida to return to an absolute outlier status of being one of only two states that

does not require unanimity.

      On May 14, 2020, this Court decided Bush v. State, 295 So. 3d 179 (Fla.

2020). In that case, this Court uprooted the long applied heightened standard of




      9. Ala. Code § 13A-5-46(f) (2020).


                                        - 16 -
review in cases that are wholly based on circumstantial evidence. Under the

heightened standard, “[e]vidence which furnishes nothing stronger than a

suspicion, even though it would tend to justify the suspicion that the defendant

committed the crime, it is not sufficient to sustain [a] conviction. It is the actual

exclusion of the hypothesis of innocence which clothes circumstantial evidence

with the force of proof sufficient to convict.” Davis v. State, 90 So. 2d 629, 631-32

(Fla. 1956). This standard, applied for more than one hundred years, served as an

important check on circumstantial evidence cases. As I noted in my dissent in

Bush, while circumstantial evidence is a vital evidentiary tool in meeting the

State’s burden of proof, “circumstantial evidence is inherently different from direct

evidence in a manner that warrants heightened consideration on appellate review.”

Bush, 295 So. 3d at 216 (Fla. 2020) (Labarga, J., concurring in part and dissenting

in part). “The solemn duty imposed upon this Court in reviewing death cases more

than justifies the stringent review that has historically been applied in cases based

solely on circumstantial evidence.” Id. at 217.

      On May 21, 2020, this Court decided Phillips v. State, 299 So. 3d 1013 (Fla.

2020). In Phillips, this Court receded from Walls v. State, 213 So. 3d 340 (Fla.

2016) (holding that Hall v. Florida, 572 U.S. 701 (2014), is to be retroactively

applied). The United States Supreme Court’s decision in Hall held that Florida

law, which barred individuals with an IQ score above 70 from demonstrating that



                                         - 17 -
they were intellectually disabled, “creates an unacceptable risk that persons with

intellectual disability will be executed, and thus is unconstitutional.” Id. at 704.

The Supreme Court concluded: “This Court agrees with the medical experts that

when a defendant’s IQ test score falls within the test’s acknowledged and inherent

margin of error, the defendant must be able to present additional evidence of

intellectual disability, including testimony regarding adaptive deficits.” Id. at 723.

In Walls, this Court held that Hall is to be retroactively applied. The majority’s

recent decision in Phillips subsequently receded from Walls.

      As expressed in my dissent in Phillips, in light of the majority’s decision to

recede from Walls, “an individual with significant deficits in adaptive functioning,

and who under a holistic consideration of the three criteria for intellectual

disability could be found intellectually disabled, is completely barred from proving

such because of the timing of his legal process. This arbitrary result undermines

the prohibition of executing the intellectually disabled.” Phillips, 299 So. 3d at

1025 (Labarga, J., dissenting).

      In each of these cases, I dissented, and I lamented the erosion of our death

penalty jurisprudence. Now today, the majority jettisons a nearly fifty-year-old

pillar of our mandatory review in direct appeal cases. As a result, no longer is this

Court required to review death sentences for proportionality. I could not dissent

more strongly to this decision, one that severely undermines the reliability of this



                                         - 18 -
Court’s decisions on direct appeal, and more broadly, Florida’s death penalty

jurisprudence.

                        Mandatory Review in Death Cases

      Until today, this Court has for decades carried out its solemn responsibility

to evaluate each death sentence for both the sufficiency of the evidence on which

the State relied to convict the defendant, and the proportionality of the death

sentence when compared with other cases. We have consistently explained: “In

death penalty cases, this Court conducts an independent review of the sufficiency

of the evidence.” Caylor v. State, 78 So. 3d 482, 500 (Fla. 2011) (citing Phillips v.

State, 39 So. 3d 296, 308 (Fla. 2010)). Whether the evidence is sufficient is judged

by whether it is competent and substantial. See Blake v. State, 972 So. 2d 839, 850

(Fla. 2007). “In conducting this review, we view the evidence in the light most

favorable to the State to determine whether a rational trier of fact could have found

the existence of the elements of the crime beyond a reasonable doubt.” Rodgers v.

State, 948 So. 2d 655, 674 (Fla. 2006) (citing Bradley v. State, 787 So. 2d 732, 738

(Fla. 2001)).

      Moreover, “[i]n capital cases, this Court compares the circumstances

presented in the appellant’s case with the circumstances of similar cases to

determine whether death is a proportionate punishment.” Caylor, 78 So. 3d at 498

(citing Wade v. State, 41 So. 3d 857, 879 (Fla. 2010)). “In deciding whether death



                                        - 19 -
is a proportionate penalty, ‘we make a comprehensive analysis in order to

determine whether the crime falls within the category of both the most aggravated

and the least mitigated of murders, thereby assuring uniformity in the application

of the sentence.’ ” Offord v. State, 959 So. 2d 187, 191 (Fla. 2007) (quoting

Anderson v. State, 841 So. 2d 390, 407-08 (Fla. 2003)). “This entails ‘a qualitative

review . . . of the underlying basis for each aggravator and mitigator rather than a

quantitative analysis.’ ” Id. (quoting Urbin v. State, 714 So. 2d 411, 416 (Fla.

1998)).

      “[P]roportionality review in death cases rests at least in part on the

recognition that death is a uniquely irrevocable penalty, requiring a more intensive

level of judicial scrutiny or process than would lesser penalties.” Tillman v. State,

591 So. 2d 167, 169 (Fla. 1991). In fact, the sufficiency of the evidence and the

proportionality analyses are so fundamental to this Court’s direct appeal review

that they are conducted regardless of whether the defendant challenges sufficiency

and proportionality on direct appeal. See Fla. R. App. P. 9.142(a)(5) (“On direct

appeal in death penalty cases, whether or not insufficiency of the evidence or

proportionality is an issue presented for review, the court shall review these issues

and, if necessary, remand for the appropriate relief.”).

      This Court first recognized the doctrine of proportionality in 1973 in State v.

Dixon, 283 So. 2d 1, 10 (Fla. 1973), superseded on other grounds by ch. 74-383,



                                        - 20 -
§ 14, Laws of Fla., as stated in State v. Dene, 533 So. 2d 265, 267 (Fla. 1988), in

which this Court explained:

              It must be emphasized that the procedure to be followed by the
      trial judges and juries is not a mere counting process of X number of
      aggravating circumstances and Y number of mitigating circumstances,
      but rather a reasoned judgment as to what factual situations require
      the imposition of death and which can be satisfied by life
      imprisonment in light of the totality of the circumstances present.
      Review by this Court guarantees that the reasons present in one case
      will reach a similar result to that reached under similar circumstances
      in another case. No longer will one man die and another live on the
      basis of race, or a woman live and a man die on the basis of sex. If a
      defendant is sentenced to die, this Court can review that case in light
      of the other decisions and determine whether or not the punishment is
      too great. Thus, the discretion charged in Furman v. Georgia . . . can
      be controlled and channeled until the sentencing process becomes a
      matter of reasoned judgment rather than an exercise in discretion at
      all.

In the decades since Dixon, a robust body of case law, consisting of literally

hundreds of cases, has reaffirmed this rationale and continually strengthened the

reliability of this Court’s proportionality review.

      While the overwhelming majority of this Court’s death penalty cases are

upheld on proportionality grounds, the fact that this Court has reversed death

sentences due to a lack of proportionality underscores the need for proportionality

review. See, e.g., McCloud v. State, 208 So. 3d 668 (Fla. 2016); Phillips v. State,

207 So. 3d 212 (Fla. 2016); Yacob v. State, 136 So. 3d 539 (Fla. 2014); Scott v.

State, 66 So. 3d 923 (Fla. 2011); Crook v. State, 908 So. 2d 350 (Fla. 2005);

Williams v. State, 707 So. 2d 683 (Fla. 1998); Jones v. State, 705 So. 2d 1364 (Fla.

                                         - 21 -
1998); Voorhees v. State, 699 So. 2d 602 (Fla. 1997); Curtis v. State, 685 So. 2d

1234 (Fla. 1996); Sinclair v. State, 657 So. 2d 1138 (Fla. 1995). Yet, I emphasize

that not only is the reversal of a death sentence on proportionality grounds a rare

occurrence, when a death sentence is reversed as disproportionate, the result is not

a “get out of jail free” card. It means that the death penalty is not a proportionate

punishment in a particular case, and that instead, the statutory maximum

punishment for first-degree murder, a sentence of life imprisonment, is what the

law requires.

      Today’s decision by the majority, striking proportionality review from this

Court’s mandatory review in death penalty appeals, leaves only the sufficiency

analysis. In removing this fundamental component of proportionality review, the

majority’s decision threatens to render this Court’s initial review of death

sentences an exercise in discretion.

       Proportionality Review is Consistent with the Eighth Amendment

      “The concept of proportionality is central to the Eighth Amendment.”

Graham v. Florida, 560 U.S. 48, 59 (2011). Contrary to the conclusion reached by

the majority, I view this Court’s lengthy history of conducting proportionality

review as entirely consistent with the Eighth Amendment as interpreted by the

United States Supreme Court, and thus, not a violation of the conformity clause

contained in article I, section 17 of the Florida Constitution. Even though the



                                        - 22 -
United States Supreme Court concluded in Pulley v. Harris, 465 U.S. 37 (1984),

that proportionality review was not constitutionally mandated, the Supreme Court

acknowledged proportionality review as “an additional safeguard against

arbitrarily imposed death sentences.” Id. at 50.

      Thus, I disagree with the majority’s reasoning that because the Supreme

Court does not expressly mandate proportionality review, Florida’s conformity

clause forbids it. The Supreme Court recognized proportionality review as an

“additional safeguard” against the very thing the Eighth Amendment prohibits—

arbitrarily imposed death sentences. As observed by Justice Brennan in his dissent

in Pulley:

             Disproportionality among sentences given different defendants
      can only be eliminated after sentencing disparities are identified. And
      the most logical way to identify such sentencing disparities is for a
      court of statewide jurisdiction to conduct comparisons between death
      sentences imposed by different judges or juries within the State. This
      is what the Court labels comparative proportionality review.
      Although clearly no panacea, such review often serves to identify the
      most extreme examples of disproportionality among similarly situated
      defendants. At least to this extent, this form of appellate review
      serves to eliminate some of the irrationality that currently surrounds
      imposition of a death sentence. If only to further this limited purpose,
      therefore, I believe that the Constitution’s prohibition on the irrational
      imposition of the death penalty requires that this procedural safeguard
      be provided.

Pulley, 465 U.S. at 70-71 (Brennan, J., dissenting) (citation omitted).

      The United States Supreme Court’s acknowledgment of proportionality as

an additional safeguard—combined with the fact that the Supreme Court has not

                                        - 23 -
held proportionality review unconstitutional—affirms that in this case, the majority

could well have concluded that proportionality does not run afoul of the

conformity clause. Instead, yet again placing Florida outside of the majority of

death penalty states, the majority has chosen to construe the United States Supreme

Court’s reasoning as prohibiting Florida’s decades old proportionality review. I

could not disagree more.

                     Proportionality Review in Other States

      Further supporting my conclusion that the majority’s decision is a highly

unfortunate departure from settled law is the fact that proportionality review is

conducted in a majority of other death penalty states. Twenty-five states currently

impose the death penalty. 10 Sixty percent of those twenty-five states, not including

Florida, conduct a proportionality review. In fourteen of those states, the review is

statutorily imposed: Alabama, Georgia, Kentucky, Louisiana, Mississippi,




       10. The list of death penalty states, which does not include three states with
a gubernatorial moratorium (California, Oregon, and Pennsylvania), is as follows:
Alabama, Arizona, Arkansas, Florida, Georgia, Idaho, Indiana, Kansas, Kentucky,
Louisiana, Mississippi, Missouri, Montana, Nebraska, Nevada, North Carolina,
Ohio, Oklahoma, South Carolina, South Dakota, Tennessee, Texas, Utah, Virginia,
and Wyoming. See Death Penalty Information Center, State by State,
https://deathpenaltyinfo.org/state-and-federal-info/state-by-state (last visited
May 20, 2020).


                                        - 24 -
Missouri, Montana, Nebraska, North Carolina, Ohio, South Carolina, South

Dakota, Tennessee, and Virginia. 11

      Similar to Florida (prior to today’s decision), appellate review of death

sentences in Utah involves a proportionality review despite the lack of a statutory

requirement. State v. Honie, 57 P.3d 977, 988 (Utah 2002) (“Despite the fact that

proportionality review is not required, either by the Utah or federal constitutions or

by statute, we have chosen to assume the responsibility of reviewing death




       11. Ala. Code § 13A-5-53(b)(3) (2020); Petric v. State, 157 So. 3d 176, 250
(Ala. Crim. App. 2013); Ga. Code Ann. § 17-10-35(c)(3) (West 2020); Willis v.
State, 820 S.E.2d 640, 650 (Ga. 2018); Ky. Rev. Stat. Ann. § 532.075(3)(c) (West
2020); White v. Commonwealth, 544 S.W.3d 125, 155 (Ky. 2018), 139 S. Ct. 532
(2019), abrogated by Woodall v. Commonwealth, 563 S.W.3d 1 (Ky. 2018); La.
Code Crim. Proc. Ann. art. 905.9 (2019); La. Sup. Ct. Gen. Admin. R. XXVIII
§ 1(c); State v. Burrell, 561 So. 2d 692, 711 (La. 1990); State v. Kyles, 513 So. 2d
265, 276 (La. 1987); Miss. Code Ann. § 99-19-105(3)(c) (2020); Ambrose v. State,
254 So. 3d 77, 151 (Miss. 2018), cert. denied, 139 S. Ct. 1379 (2019); Mo. Rev.
Stat. § 565.035.3(3) (2019); State v. Collings, 450 S.W.3d 741, 767 (Mo. 2014);
State v. Deck, 303 S.W.3d 527, 550 (Mo. 2010); Mont. Code Ann. § 46-18-310
(2019); State v. Smith, 931 P.2d 1272, 1283-84 (Mont. 1996); Neb. Rev. Stat. Ann.
§§ 29-2521.01-29-2521.04 (West 2020); State v. Schroeder, 941 N.W.2d 445, 470
(Neb. 2020); N.C. Gen. Stat. § 15A-2000(d)(2) (West 2019); State v. McNeill, 813
S.E.2d 797, 838-39 (N.C. 2018), cert. denied, 139 S. Ct. 1292 (2019); Ohio Rev.
Code Ann. § 2929.05(A) (West 2020); State v. Myers, 114 N.E.3d 1138, 1185
(Ohio 2018), cert. denied, 139 S. Ct. 822 (2019); S.C. Code Ann. § 16-3-25(C)(3)
(2020); State v. Inman, 720 S.E.2d 31, 46 (S.C. 2011); S.D. Codified Laws § 23A-
27A-12(3) (2020); State v. Piper, 842 N.W.2d 338, 347-48 (S.D. 2014); Tenn.
Code Ann. § 39-13-206(c)(1)(D) (West 2020); State v. Jones, 568 S.W.3d 101, 141
(Tenn. 2019), cert. denied, 140 S. Ct. 262 (2019); Va. Code Ann. § 17.1-
313(C)(2), (E) (West 2020); Lawlor v. Commonwealth, 738 S.E.2d 847, 894-95
(Va. 2013).


                                        - 25 -
sentences for disproportionality.”); State v. Wood, 648 P.2d 71, 77 (Utah 1982)

(“In the penalty phase, it is our duty to determine whether the sentence of death

resulted from error, prejudice or arbitrariness, or was disproportionate.”); see also

State v. Maestas, 299 P.3d 892, 987 (Utah 2012); State v. Andrews, 574 P.2d 709,

710-11 (Utah 1977); State v. Pierre, 572 P.2d 1338, 1345 (Utah 1977).

      The Utah Supreme Court has emphasized that a proportionality review

“means that this Court will not allow sentencing authorities to impose the death

penalty in an invidious fashion against particular types of persons or groups of

persons or in a fashion disproportionate to the culpability in a particular case . . .

that over time, as this Court becomes aware of a general pattern in the imposition

of the death penalty in this state, the Court may set aside death sentences that fall

outside the general pattern and thus reflect an anomaly in the imposition of the

death penalty.” State v. Holland, 777 P.2d 1019, 1025-26 (Utah 1989). The court

stated that this review function “substantially eliminates the possibility that a

person will be sentenced to die by the action of an aberrant jury.” State v. Pierre,

572 P.2d 1338, 1345 (Utah 1977) (quoting Gregg v. Georgia, 428 U.S. 153, 206

(1976)).

      Even in states that statutorily mandate proportionality review, several state

supreme courts have emphasized its importance. The Supreme Court of Virginia

explained: “The purpose of our comparative [proportionality] review is to reach a



                                         - 26 -
reasoned judgment regarding what cases justify the imposition of the death

penalty. We cannot insure complete symmetry among all death penalty cases, but

our review does enable us to identify and invalidate a death sentence that is

‘excessive or disproportionate to the penalty imposed in similar cases.’ ” Orbe v.

Commonwealth, 519 S.E.2d 808, 817 (Va. 1999) (quoting Va. Code Ann. § 17.1-

313(C)(2)); see also Lawlor v. Commonwealth, 738 S.E.2d 847, 894-95 (Va.

2013).

         Similarly, the Tennessee Supreme Court has recognized that “the purposes

of comparative proportionality review are to eliminate the possibility that a person

will be sentenced to death by the action of an aberrant jury and to guard against the

capricious or random imposition of the death penalty,” and that “comparative

review of capital cases insures rationality and consistency in the imposition of the

death penalty.” State v. Bland, 958 S.W.2d 651, 665 (Tenn. 1997) (citing State v.

Barber, 753 S.W.2d 659, 665-66 (Tenn. 1988)); see also State v. White, 565 S.E.2d

55, 68 (N.C. 2002) (recognizing that “[p]roportionality review also acts ‘[a]s a

check against the capricious or random imposition of the death penalty.’ ” (quoting

State v. Barfield, 259 S.E.2d 510, 544 (N.C. 1979))); State v. Ramsey, 864 S.W.2d

320, 328 (Mo. 1993) (stating that proportionality review “is designed by the

legislature as an additional safeguard against arbitrary and capricious sentencing

and to promote evenhanded, rational and consistent imposition of death



                                        - 27 -
sentences.”); State v. Kyles, 513 So. 2d 265, 276 (La. 1987) (stating that although

not constitutionally required, the court “conducts a proportionality review as a

further safeguard against arbitrariness”).

      Without proportionality review, each death sentence stands on its own.

Failing to consider a death sentence in the context of other death penalty cases

impairs the reliability of this Court’s decision affirming that sentence.

                                     Conclusion

      In line with a vision consistent with evolving standards of decency, as

envisioned by the United States Supreme Court in Trop v. Dulles, 356 U.S. 86, 101

(1958), our state’s jurisprudence has in many instances provided its citizenry with

greater rights and protections than the minimum required by the United States

Supreme Court, the federal government, and other states. In this instance, our state

has consistently done just that, by requiring a proportionality review in every death

penalty case, thus providing “an additional safeguard against arbitrarily imposed

death sentences.” Pulley, 465 U.S. at 50. As noted earlier, sixty percent of the

twenty-five states that currently impose the death penalty require a proportionality

review.

      Sadly, this long-standing jurisprudential approach has been significantly, if

not completely, repudiated by this Court’s various opinions, beginning with its

decision in Poole, followed by Bush and Phillips, and continuing with today’s



                                        - 28 -
decision to discontinue conducting a proportionality analysis in each death penalty

appeal.

      I deeply, regretfully, and most respectfully dissent.

An Appeal from the Circuit Court in and for Santa Rosa County,
     David Rimmer, Judge - Case No. 571998CF000270XXAXMX

Andy Thomas, Public Defender, and Barbara J. Busharis, Assistant Public
Defender, Second Judicial Circuit, Tallahassee, Florida,

      for Appellant

Ashley Moody, Attorney General, and Charmaine M. Millsaps, Senior Assistant
Attorney General, Tallahassee, Florida,

      for Appellee




                                        - 29 -
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