State v. Johan Quinones , 2017 Fla. App. LEXIS 852 ( 2017 )

IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FIFTH DISTRICT
NOT FINAL UNTIL TIME EXPIRES TO
FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
STATE OF FLORIDA,
Petitioner,
v. Case No. 5D16-4292
JOHAN QUINONES,
Respondent.
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Opinion filed January 24, 2017
Petition for Writ of Prohibition,
Alan Apte, Respondent Judge.
Pamela Jo Bondi, Attorney General,
Tallahassee, and Marilyn Muir Beccue,
Assistant Attorney General, Tampa, for
Petitioner.
J. Edwin Mills and Frank J. Bankowitz,
Orlando, for Respondent.
PER CURIAM.
We grant Petitioner’s alternative application for a writ of certiorari to quash the trial
court's December 14, 2016, order granting Respondent’s motion to strike the State's
death penalty notice, filed in Orange County case number 2014-CF-008535. Although the
Florida Supreme Court held in Hurst v. State, 202 So. 3d 40, 43 (Fla. 2016), that the
amended statutory death penalty scheme is constitutionally infirm due to the lack of a
requirement that the jury’s recommendation be unanimous, we agree with Petitioner that
the trial court should have severed the offending component of the statute. In reaching
this conclusion, we manifest our agreement with Petitioner’s succinct argument:
[S]ubsection (2)(c) can be severed from § 921.141, Florida
Statutes, leaving intact the legislative intent of providing a
constitutional procedure for imposition of the death penalty in
appropriate cases. Absent the specific language of
subsection (2)(c), the statute requires the jury to make a
recommendation for life or death. Pursuant to the judicial
obligation to construe the statute in a constitutional manner,
trial judges should ensure that all jury findings issued in the
application of the death penalty are unanimous. This result is
consistent with the Florida Supreme Court's determination
that the statute's jury findings provisions as to the existence
and sufficiency of the aggravating factors and that the
aggravating factors outweigh the mitigating circumstances
must be construed in a constitutional manner (requiring
unanimity) so as to preserve the statute's viability. The
absence of a legislative mandate on the nature of the jury vote
can be easily cured through accurate jury instructions and
simple interrogatories. It does not require any substantive re-
writing of the law.
Furthermore, an unconstitutional provision of a statute
can and should be severed from the remainder when the taint
of the illegal provision has not infected the entire enactment.
Schmitt v. State, 590 So. 2d 404, 414 (Fla. 1991). In this case,
the provision declared unconstitutional does not taint the
remainder of § 921.141(2) such that the entire statute must
fail.
In our view, this statute presents a classic case where severance is appropriate
under the four-part test adopted by the Florida Supreme Court in Cramp v. Board of Public
Instruction of Orange County, 137 So. 2d 828, 830 (Fla. 1962). First, the unconstitutional
provisions can be separated from the valid provisions. Second, the legislative purpose of
preserving Florida’s death penalty can be accomplished without the offending provisions.
Third, the “good and the bad” features are not so inseparable that the legislature would
not have passed the good without the bad. Finally, a complete act remains intact without
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the offending provisions. Because the requirement for a unanimous jury verdict is derived
from our constitution, the constitution itself provides the missing element of a completed
procedure for determining when a death sentence may be imposed.
We certify the following question to the Florida Supreme Court as one of great
public importance:
CAN AND SHOULD SUBSECTION 921.141(2), FLORIDA
STATUTES, BE STRICKEN SO THAT THE REMAINING
PORTIONS OF THE STATUTE ARE EFFECTUATED
CONSISTENT WITH THE INTENT OF THE LEGISLATURE
AND THE UNITED STATES AND FLORIDA
CONSTITUTIONS?
PETITION GRANTED; ORDER QUASHED; QUESTION CERTIFIED.
ORFINGER, TORPY, and WALLIS, JJ., concur.
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