Troy Victorino v. State of Florida

Supreme Court of Florida
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No. SC17-1285
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TROY VICTORINO,
Appellant,
vs.
STATE OF FLORIDA,
Appellee.
[March 8, 2018]
PER CURIAM.
Troy Victorino, a prisoner under sentences of death, appeals the portions of
the postconviction court’s order denying in part his successive motion for
postconviction relief, which was filed under Florida Rule of Criminal Procedure
3.851. We have jurisdiction. See art. V, § 3(b)(1), Fla. Const.
I. BACKGROUND
On July 25, 2006, after a jury trial, Victorino was found guilty of the
following crimes: one count of conspiracy to commit aggravated battery, murder,
armed burglary of a dwelling, and tampering with physical evidence; six counts of
first-degree murder of victims Erin Belanger, Francisco Ayo Roman, Jonathon W.
Gleason, Roberto Manuel Gonzalez, Michelle Ann Nathan, and Anthony Vega;
one count of abuse of a dead human body with a weapon; one count of armed
burglary of a dwelling; and one count of cruelty to animals. After the penalty
phase, the jury returned a recommendation that Victorino be sentenced to death for
the murders of Erin Belanger (by a vote of ten to two), Francisco Ayo Roman (by a
vote of ten to two), Jonathon W. Gleason (by a vote of seven to five), and Roberto
Manuel Gonzalez (by a vote of nine to three), and to life imprisonment for the
murders of Michelle Ann Nathan and Anthony Vega. The trial court followed the
jury’s recommendation and imposed four death sentences on Victorino.
We affirmed Victorino’s convictions and death sentences on direct appeal.
Victorino v. State, 23 So. 3d 87 (Fla. 2009). We thereafter affirmed the denial of
Victorino’s initial motion for postconviction relief and denied his petition for a
writ of habeas corpus. Victorino v. State, 127 So. 3d 478 (Fla. 2013).
Following the United States Supreme Court’s decision in Hurst v. Florida,
136 S. Ct. 616 (2016), and this Court’s decisions in Hurst v. State, 202 So. 3d 40
(Fla. 2016), cert. denied, 137 S. Ct. 2161 (2017), and Mosley v. State, 209 So. 3d
1248 (Fla. 2016), Victorino filed a successive postconviction motion. The
postconviction court granted Victorino’s motion in part, ordering that Victorino’s
death sentences be vacated and a new penalty phase be held in light of the Hurst
and Mosley decisions. But the postconviction court denied the portions of
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Victorino’s motion in which he argued that he was entitled to be resentenced to life
imprisonment based on section 775.082(2), Florida Statutes, the prohibition against
double jeopardy, and the prohibition against ex post facto laws. Victorino now
appeals the portions of the postconviction court’s order denying in part his
successive motion.
II. ANALYSIS
A. Section 775.082(2), Florida Statutes
Victorino concedes we have already ruled in Hurst v. State and Franklin v.
State, 209 So. 3d 1241 (Fla. 2016), that section 775.082(2)1 does not require death
sentences imposed in violation of Hurst v. Florida to be commuted to life.
Nonetheless, Victorino urges us to reconsider our interpretation of section
775.082(2) in light of the fact that his case involves a mass murder and four death
sentences. Victorino asserts that under these circumstances a new penalty phase
1. Section 775.082(2) provides:
In the event the death penalty in a capital felony is held to be
unconstitutional by the Florida Supreme Court or the United States
Supreme Court, the court having jurisdiction over a person previously
sentenced to death for a capital felony shall cause such person to be
brought before the court, and the court shall sentence such person to
life imprisonment as provided in subsection (1). No sentence of death
shall be reduced as a result of a determination that a method of
execution is held to be unconstitutional under the State Constitution or
the Constitution of the United States.
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would be especially time consuming and costly and therefore it would be
reasonable for us to construe section 775.082(2) in a way that would require his
death sentences to be commuted to life sentences. We find Victorino’s suggestion
that we reconsider our interpretation of section 755.082(2) based on the facts of his
case unpersuasive and conclude that section 775.082(2) does not entitle Victorino
to be resentenced to life imprisonment.
B. The Prohibition Against Double Jeopardy
Victorino next argues that because none of the four jury recommendations
for the death penalty in his case were unanimous, he was “acquitted” of the death
penalty and therefore subjecting him to a new penalty phase, in which he will again
be eligible for the death penalty, violates the prohibition against double jeopardy.
This claim is meritless. The Hurst decisions do not “acquit” Victorino of his four
death sentences. As the United States Supreme Court discussed in Sattazahn v.
Pennsylvania, 537 U.S. 101, 114 (2003), a retrial of a capital defendant does not
implicate double jeopardy, stating, “[n]or, in these circumstances, does the
prospect of a second capital-sentencing proceeding implicate any of the ‘perils
against which the Double Jeopardy Clause seeks to protect’ ” (citation omitted).
Victorino has not been acquitted of the death penalty or deemed to be an
inappropriate candidate for the death penalty. The postconviction court correctly
applied the law in determining that double jeopardy does not bar a new penalty
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phase in which Victorino will again be eligible for the death penalty. Victorino is
not entitled to relief.
C. The Prohibition Against Ex Post Facto Laws
Victorino argues that to “apply the recent, post-Hurst case law retroactively
to make the Defendant death-eligible would violate the constitutional prohibitions
against ex post facto laws.” Initial Brief of Appellant at 18, Victorino v. State, No.
SC17-1285 (Fla. Sept. 21, 2017). For a criminal law to be ex post facto it must be
retrospective, that is, it must apply to events that occurred before its enactment;
and it must alter the definition of criminal conduct or increase the penalty by which
a crime is punishable. Lynce v. Mathis, 519 U.S. 433, 441 (1997). Florida’s new
capital sentencing scheme, which requires the jury to unanimously and expressly
find all the aggravating factors that were proven beyond a reasonable doubt,
unanimously find that sufficient aggravating factors exist to impose death,
unanimously find that the aggravating factors outweigh the mitigating
circumstances, and unanimously recommend a sentence of death before the trial
judge may consider imposing a sentence of death, see § 921.141(2), Fla. Stat.
(2017), neither alters the definition of criminal conduct nor increases the penalty
by which the crime of first-degree murder is punishable. Thus, it does not
constitute an ex post facto law, and Victorino is therefore not entitled to relief.
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III. CONCLUSION
For these reasons, we affirm the portions of the postconviction court’s order
denying Victorino’s claims that he is entitled to have his death sentences reduced
to life sentences.
It is so ordered.
LABARGA, C.J., and PARIENTE, LEWIS, QUINCE, CANADY, POLSTON,
and LAWSON, JJ., concur.
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND,
IF FILED, DETERMINED.
An Appeal from the Circuit Court in and for Volusia County,
Randell H. Rowe, III, Judge - Case No. 642004CF001378XXXAWS
Christopher J. Anderson of Law Office of Christopher J. Anderson, Neptune
Beach, Florida,
for Appellant
Pamela Jo Bondi, Attorney General, Tallahassee, Florida, and Doris Meacham,
Assistant Attorney General, Daytona Beach, Florida,
for Appellee
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