State of Florida v. William Frances Silvia , 235 So. 3d 349 ( 2018 )

Supreme Court of Florida
____________
No. SC17-337
____________
STATE OF FLORIDA,
Appellant,
vs.
WILLIAM FRANCES SILVIA,
Appellee.
[February 1, 2018]
PER CURIAM.
The issue in this case is whether William Frances Silvia’s original, valid
waiver of postconviction proceedings and counsel precludes him from claiming a
right to relief under Hurst v. State (Hurst), 202 So. 3d 40 (Fla. 2016), cert. denied,
137 S. Ct. 2161 (2017). This Court has jurisdiction. See art. V, § 3(b)(1), Fla.
Const. Silvia is a prisoner under sentence of death whose sentence, which was
imposed after a jury recommended death by a vote of 11-1, became final on June 6,
2011. See Silvia v. State, 60 So. 3d 959, 966 (Fla. 2011).
This Court fully explained the facts underlying Silvia’s sentence of death in
its opinion on direct appeal. Id. at 963-64. On direct appeal, Silvia argued, among
other claims, that Florida’s capital sentencing scheme was unconstitutional under
the United States Supreme Court’s opinion in Ring v. Arizona, 536 U.S. 584
(2002), which provided the underpinnings of the United States Supreme Court’s
opinion in Hurst v. Florida, 136 S. Ct. 616 (2016), and Hurst. See Silvia, 60 So. 3d
at 978. This Court denied the claim and affirmed Silvia’s convictions and
sentences. Id.
In 2012, Silvia waived his right to postconviction proceedings and counsel.
See Silvia v. State, No. SC12-1863, 2013 WL 5035694, *1 (Fla. Sept. 11, 2013)
(123 So. 3d 1148). Upon review in 2013, this Court “conclude[d] that the trial
court did not abuse its discretion in discharging Silvia’s postconviction counsel and
dismissing postconviction proceedings.” Id. at *2. Silvia does not dispute in this
case the validity of his original waiver.
Three years after this Court affirmed the dismissal of Silvia’s postconviction
proceedings, the United States Supreme Court decided Hurst v. Florida, and this
Court decided Hurst on remand. After Hurst, Silvia filed a Successive Motion to
Vacate Death Sentence claiming a right to Hurst relief. The postconviction court
concluded that Silvia was not “seeking to reinstate his previously waived
postconviction proceedings because he had changed his mind” but was “seeking to
avail himself of a newly established constitutional right he did not possess at the
time of the waiver.” The court determined that Silvia “could not knowingly and
-2-
voluntarily waive a right . . . he did not possess at the time of the waiver” and,
therefore, found that Silvia “is not precluded from seeking Hurst relief.” Applying
Hurst to Silvia’s sentence, the postconviction court granted Silvia a new penalty
phase. The State appealed.
The issue in this case is whether Silvia’s waiver of postconviction
proceedings and counsel precludes him from claiming a right to Hurst relief.
Although there is certainly a difference between a defendant who changes his mind
after validly waiving postconviction proceedings and a defendant who asserts a
right to relief under Hurst, we conclude that this distinction does not afford Silvia
any basis for claiming Hurst relief that would entitle him to a new penalty phase.
In Mullens v. State, 197 So. 3d 16 (Fla. 2016), an analogous case, a
defendant waived the right to a penalty phase jury and then attempted to claim a
right to relief under Hurst. This Court denied relief, explaining that a defendant
“cannot subvert [a] right . . . by waiving that right and then suggesting that a
subsequent development in the law has fundamentally undermined his sentence.”
Id. at 40. In Mullens, this Court held that Hurst does not apply to defendants who
validly waived their right to a penalty phase jury, writing:
If a defendant remains free to waive his or her right to a jury
trial, even if such a waiver under the previous law of a different
jurisdiction automatically imposed judicial factfinding and sentencing,
we fail to see how Mullens, who was entitled to present mitigating
evidence to a jury as a matter of Florida law even after he pleaded
guilty and validly waived that right, can claim error. As our sister
-3-
courts have recognized, accepting such an argument would encourage
capital defendants to abuse the judicial process by waiving the right to
jury sentencing and claiming reversible error upon a judicial sentence
of death.
Id. at 39-40 (emphasis omitted).
In this case, Silvia does not challenge the validity of his postconviction
waiver. In fact, in reviewing Silvia’s waiver in 2013, this Court made clear:
In addition, Silvia indicated that he understood that by waiving
postconviction proceedings early in the process—before a motion was
filed—he was losing permanently his right to take advantage of any
changes that may occur in the law, that he was waiving his right to
federal review, and that because his attorneys had not yet completed
their discovery, it was unknown what issues could be raised. Silvia
acknowledged that he understood everything his attorneys had done to
date and that his attorneys could discover information that would be
beneficial to him in postconviction. Silvia indicated that he
understood that the issues in his case were not fully developed, that
his attorneys could not proceed further in their investigation without
his cooperation, and that his attorneys could discover information that
would be beneficial to him. He nevertheless indicated that he did not
wish his attorneys to proceed with any further discovery and that he
was voluntarily waiving his postconviction counsel and proceedings.
Silvia, 2013 WL 5035694, at *2 (emphasis added). Further, at the time of Silvia’s
postconviction waiver in 2012, Ring, which provided the underpinnings for Hurst
v. Florida, had been decided for over a decade and almost all defendants, including
Silvia, had raised a Ring claim on direct appeal. Thus, we conclude that Silvia’s
original, valid postconviction waiver, which he has never contested before this
Court, precludes him from claiming a right to relief under Hurst.
-4-
CONCLUSION
For the reasons fully explained above, we conclude that Silvia’s valid
postconviction waiver, which included his understanding that “he was losing
permanently his right to take advantage of any changes that may occur in the law,”
Silvia, 2013 WL 5035694, at *2, precludes him from claiming a right to the benefit
of Hurst. Accordingly, we reverse the postconviction court’s order granting Silvia
a new penalty phase and reinstate his death sentence.
It is so ordered.
LABARGA, C.J., and PARIENTE, QUINCE, POLSTON, and LAWSON, JJ.,
concur.
CANADY, J., concurs in result.
LEWIS, J., dissents with an opinion.
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND,
IF FILED, DETERMINED.
LEWIS, J., dissenting.
Today this Court advances for the first time a new excuse, not a valid
reason, to push Florida’s death penalty jurisprudence into an unconstitutional
abyss. This case is a classic example which illustrates application of this Court’s
retroactivity approach to Hurst v. Florida, 136 S. Ct. 616 (2016), and Hurst v.
State, 202 So. 3d 40 (Fla. 2016), to deny relief to defendants who have fully and
completely preserved the constitutional challenges to Florida’s death sentencing
scheme. This new denial approach results in equal protection and due process
-5-
violations, constitutes cruel and unusual punishment, and the arbitrary and
capricious operation of the death penalty. The Court simply turns its eyes from the
violation of the Sixth, Eighth, and Fourteenth Amendments under the United States
Constitution and the corresponding provisions under our Florida Constitution.
The construction of our current death penalty dilemma finds its origin in the
issuance of Apprendi v. New Jersey, 530 U.S. 466 (2000). Although it was not a
death penalty case, our high court in Apprendi addressed the issue of requiring a
unanimous jury vote for certain factors. Two years later, in Ring v. Arizona, 536
U.S. 584 (2002), the United States Supreme Court applied the principles of
Apprendi to capital defendants, holding that capital defendants “are entitled to a
jury determination of any fact on which the legislature conditions an increase in
their maximum punishment.” Ring, 536 U.S. at 589. For years after Ring,
defendants facing the death penalty in Florida, including Silvia, attempted to rely
on and asserted that Ring required a unanimous jury verdict to support a valid
death penalty judgment. Over and over and over again the concept addressed in
Ring with regard to unanimous jury verdicts was denied application in death
penalty proceedings in Florida. E.g., Pietri v. State, 885 So. 2d 245, 276 (Fla.
2004) (denying relief because the felony murder aggravator involved
“circumstances submitted to a jury and found to exist beyond a reasonable doubt”);
Sochor v. State, 883 So. 2d 766, 790 (Fla. 2004) (“We previously have addressed
-6-
this [Ring] claim and denied relief.”); Kimbrough v. State, 886 So. 2d 965, 984
(Fla. 2004) (“This Court has previously declined to hold that Florida’s death
penalty scheme is unconstitutional on the basis of Apprendi or Ring.”).
It was not until January 12, 2016, when the United States Supreme Court
issued Hurst v. Florida that the “fundamental constitutional right” requiring a
unanimous jury verdict arose in death penalty proceedings constructed and built
upon the foundational principles announced earlier in Ring.
With the issuance of Hurst v. Florida, the logical question arose as to how it
would be applied and the extent to which it would be retroactively applied to those
pending execution of a death sentence. That retroactivity question was answered,
in part, by this Court in Asay v. State, 210 So. 3d 1 (Fla. 2016), when the Court
held that Hurst would retroactively apply to only those cases in which the death
penalty had been imposed on or after the date Ring had been issued in 2002. At
that time, I reasoned in Asay that Hurst should also apply to cases prior to 2002 if
the issue of requiring a unanimous jury verdict had been properly preserved for
review in the proceedings even prior to Ring, relying on James v. State (James I),
615 So. 2d 668, 669 (Fla. 1993). Asay, 210 So. 3d at 30 (Lewis, J., concurring in
result). The Court rejected that reasoning and adopted a fixed retroactive date.
Within these parameters, cases began flowing to this Court in successive
postconviction motions. Those cases that became final after Ring with unanimous
-7-
jury verdicts for death were denied relief. E.g., King v. State, 211 So. 3d 866, 889-
93 (Fla. 2017); Davis v. State, 207 So. 3d 142, 174-75 (Fla. 2016). Defendants in
cases that became final after Ring in which the defendants had totally waived a
penalty phase jury trial were also denied relief. Mullens v. State, 197 So. 3d 16,
38-40 (Fla. 2016). Until this time, in all other cases in which less than a
unanimous jury verdict for death was returned, the judgment for death has been
quashed and the cases remanded to the trial court for proceedings consistent with
Hurst without regard to any preservation issues. Even those cases in which
defendants conceded during oral argument that Ring did not apply to Florida death
cases based on existing Florida law have received the benefit of Hurst, but Silvia
will not simply because he did not come to this Court for an oral argument on a
postconviction motion having preserved the issue at trial and on direct appeal.
We now face Silvia in which Silvia has received a post-Ring, nonunanimous
death penalty verdict. Silvia v. State, 60 So. 3d 959, 966 (Fla. 2011). By now, it is
well-established Florida law that Hurst requires unanimity and applies retroactively
to “defendants whose sentences became final after the United States Supreme
Court issued its opinion in Ring.” Mosley v. State, 209 So. 3d 1248, 1276 (Fla.
2016). Thus, regardless of the majority’s unwillingness to mention this fact, Hurst
applies retroactively to Silvia’s case. E.g., Hojan v. State, 212 So. 3d 982, 999
(Fla. 2017) (“Hurst appl[ies] retroactively to defendants, like Hojan, whose
-8-
sentences were not yet final when the Supreme Court issued Ring.”). There have
been many post-Ring, nonunanimous defendants whose various appeals and
postconviction motions were correctly resolved when this Court granted them
Hurst relief. See, e.g., Gregory v. State, 224 So. 3d 719 (Fla. 2017) (post-Ring,
nonunanimous postconviction motion defendant); Jeffries v. State, 222 So. 3d 538
(Fla. 2017) (post-Ring, nonunanimous direct appeal defendant); Bailey v. Jones,
225 So. 3d 776 (Fla. 2017) (post-Ring, nonunanimous habeas corpus petition
defendant). In view of these cases, the appropriate disposition is clear. Yet, for the
first time, the majority decision eschews recent precedent and denies Hurst relief to
a post-Ring, nonunanimous defendant because he did not continue a meritless,
fruitless—and at that point frivolous—Ring challenge in the context of a
postconviction proceeding even though he had asserted that right during trial and
on direct appeal and had fully preserved the argument for appellate purposes.
Silvia, 60 So. 3d at 978. Silvia was not even required to file for postconviction
relief but did file and later withdrew his meritless pleading. This arbitrary denial
of rights treats similarly situated defendants differently. In doing so, Silvia is
being denied equal protection and due process under the law, violating his rights
under the Fourteenth Amendment and article I, section 2 of the Florida
Constitution.
-9-
Although not specifically stated, the basis for this decision is simple, albeit
misguided. However, by skirting the underlying law, the majority disregards the
real substance of the question presented and develops a holding absent any
precedential support. The decision impliedly relies upon the concept regarding a
waiver of postconviction proceedings. See majority op. at 3. As a general matter,
this Court has held that the waiver of postconviction proceedings is a final
determination. See Trease v. State, 41 So. 3d 119, 126 (Fla. 2010); James v. State
(James II), 974 So. 2d 365, 368 (Fla. 2008). Nevertheless, neither Trease nor
James II determinatively answers the issue in this case. Our James II holding was
actually quite narrow: “[W]e conclude that a mere change of mind is an
insufficient basis for setting aside a previous waiver.” James II, 974 So. 2d at 368
(emphasis added). We explained that James could not overcome his waiver
because there was no dispute that the Durocher1 proceedings were followed and
James “asserted no valid basis for avoiding his waiver.” James II, 974 So. 2d at
368. Likewise, as it concerned reversing the waiver of postconviction proceedings,
Trease held that “because this Court in James[ II] held that a change of mind is
insufficient grounds to set aside a prior valid waiver, we deny Trease’s request to
1. Durocher v. Singletary, 623 So. 2d 482, 485 (Fla. 1993) (establishing that
a defendant is entitled to waive postconviction proceedings so long as there is an
inquiry conforming to Faretta v. California, 422 U.S. 806 (1975), into the
“knowing, intelligent, and voluntary” nature of the waiver).
- 10 -
reinstate his postconviction proceedings.” Trease, 41 So. 3d at 126. Trease and
James II are factually distinguishable from this case because, here, Silvia did not
simply change his mind like the defendants in those cases. Instead, the trial court
here—which is better positioned than this Court to determine Silvia’s intentions—
specifically found that Silvia “is not seeking to reinstate his previously waived
postconviction proceedings because he has changed his mind. Rather he is seeking
to avail himself of a newly established constitutional right, which has been held to
apply retroactively.” As a result, the trial court here vacated Silvia’s death
sentence. In my view, the constitutional rights generated by Hurst are a sufficient
basis to avoid Silvia’s waiver. Cf. James II, 974 So. 2d at 368 (changing of the
mind was not a sufficient basis). Such a scenario is specifically contemplated as an
exception to the time limitation on postconviction motions under Florida Rule of
Criminal Procedure 3.851:
(2) No motion shall be filed or considered pursuant to this rule
if filed beyond the time limitation provided in subdivision (d)(1)[2]
unless it alleges:
....
(B) the fundamental constitutional right asserted was not
established within the period provided for in subdivision (d)(1) and
has been held to apply retroactively . . . .
2. This subdivision prescribes a one-year time limit on filing an initial
postconviction motion after the sentence becomes final. See Fla. R. Crim. P.
3.851(d)(1).
- 11 -
Fla. R. Crim. P. 3.851(d)(2)(B). Accordingly, nothing in Florida law precludes
Silvia from raising a Hurst claim.
In the past, this Court has granted relief on changes in the law retroactively
to postconviction defendants who preserved the issue for review on their direct
appeal prior to the change. James I, 615 So. 2d at 669. In James I, we granted
relief to a defendant who had asserted at trial and on direct appeal that the jury
instruction pertaining to the heinous, atrocious, or cruel aggravating circumstance
was unconstitutionally vague before the United States Supreme Court ultimately
reached that same conclusion in Espinosa v. Florida, 505 U.S. 1079 (1992). James
I, 615 So. 2d at 668-69. We concluded that—despite his case becoming final
before the principle of law had a case name—it would be unjust to deprive James
of the benefit of the Supreme Court’s holding in Espinosa after he had properly
presented and preserved such a claim. James I, 615 So. 2d at 669. Similarly, I
believe that defendants who properly preserved the substance of a Ring challenge
at trial and on direct appeal prior to that decision should also be entitled to have
their constitutional challenges heard. Hitchcock v. State, 226 So. 3d 216, 218-19
(Fla. 2017) (Lewis, J., concurring in result); Asay, 210 So. 3d at 30 (Lewis, J.,
concurring in result). Similar to the defendant in James I, Silvia properly
preserved his Ring challenge at trial and on direct appeal. Silvia, 60 So. 3d at 978.
- 12 -
Therefore, Silvia is entitled to Hurst relief. He could not validly waive a
constitutional right that simply did not exist at the time of the alleged waiver.
In Mosley, this Court recognized that “fundamental fairness alone may
require the retroactive application of certain decisions involving the death penalty
after the United States Supreme Court decides a case that changes our
jurisprudence.” Mosley, 209 So. 3d at 1274-75. There, we cited James I and held
that, “because Mosley raised a Ring claim at his first opportunity and was then
rejected at every turn, we conclude that fundamental fairness requires the
retroactive application of Hurst, which defined the effect of Hurst v. Florida, to
Mosley.” Mosley, 209 So. 3d at 1275. In that case, we further conducted a
standard retroactivity analysis under Witt v. State, 387 So. 2d 922 (Fla. 1980);
however, Mosley clearly stands for the proposition that, under James I, it is
fundamentally unfair to withhold Hurst relief to post-Ring, nonunanimous
defendants who properly raised the issue, regardless of whether they are in this
Court on direct appeal or postconviction motion. Mosley, 209 So. 3d at 1274-75.
Therefore, to deny Hurst relief to Silvia is a violation of his right to due process
under the Fourteenth Amendment and article I, section 9 of the Florida
Constitution. See Gore v. State, 719 So. 2d 1197, 1203 (Fla. 1998) (“Due process
requires that fundamental fairness be observed in each case for each defendant.”).
- 13 -
As a practical matter, if Silvia had merely re-raised his Ring claim in a
postconviction motion, then he would be entitled to Hurst relief. Yet, at the time
of his postconviction proceedings, any Ring challenge by Silvia was futile,
meritless, and frivolous. See Johnson v. State, 904 So. 2d 400, 406 (Fla. 2005)
(“[V]irtually every postconviction appeal filed in this Court since Ring invokes
that case. We repeatedly have denied such requests for clear lack of merit . . . .”),
abrogated by Jackson v. State, 213 So. 3d 754 (Fla. 2017). Moreover, under this
Court’s broader postconviction standard, it would have been inappropriate for
Silvia to continue his Ring challenge through postconviction proceedings. This
Court has stated,
The purpose of the Rule 3.850[3] motion is to provide a means
of inquiry into the alleged constitutional infirmity of a judgment or
sentence, not to review ordinary trial errors cognizable by means of a
direct appeal. The motion procedure is neither a second appeal nor a
substitute for appeal. Matters which were raised on appeal and
decided adversely to the movant are not cognizable by motion under
Rule 3.850. Furthermore, any matters which could have been
presented on appeal are similarly held to be foreclosed from
consideration by motion under the Rule. Therefore, a Rule 3.850
motion based upon grounds which either were or could have been
raised as issues on appeal may be summarily denied.
3. Today, capital postconviction motions are covered by Florida Rule of
Criminal Procedure 3.851, which was adopted in 1993. See Fla. R. Crim. P. 3.851
cmt. (1993).
- 14 -
McCrae v. State, 437 So. 2d 1388, 1390 (Fla. 1983) (emphasis added) (citations
omitted). Silvia properly preserved the error and unsuccessfully challenged Ring
at trial and on direct appeal. Silvia, 60 So. 3d at 978. Therefore, there was nothing
further for Silvia to challenge relating to the unconstitutionality of Florida’s
previous death scheme through postconviction proceedings and he was not
required to perform a frivolous act. Moreover, nothing requires capital defendants
to pursue postconviction proceedings. Despite this, the majority denies the Hurst
relief that is clearly warranted. Such a decision effectively encourages
postconviction counsel to raise meritless claims, even if they have been decided on
direct appeal, simply to satisfy an arbitrary procedural step in the hope of future
retroactivity.
Crucially, nothing in this Court’s post-Hurst jurisprudence suggests any
requirement for defendants to have pursued postconviction appeals to receive the
benefit of Hurst. This Court has noted, however, that defendants who waived their
Sixth Amendment right to a jury are precluded from benefitting from Hurst. E.g.,
Mullens, 197 So. 3d at 38-40. Because the defendant in Mullens waived the rights
to which Hurst applied, we correctly concluded that the defendant waived his
entitlement to Hurst relief. Mullens, 197 So. 3d at 38-40. The majority relies on
Mullens as “an analogous case” and its only support for this decision. Majority op.
at 3-4. It never explains why Mullens is analogous, and perhaps that is because
- 15 -
Mullens is inapposite. Mullens totally waived his rights to a penalty phase jury
determination to which Hurst applied. Whereas, here, Silvia simply did not
proceed with postconviction proceedings, which is wholly separate from the Sixth
and Eighth Amendment rights implicated by Hurst. In effect, the majority attempts
to compare a lightning bug to the lightning. A little over one year ago, in Hurst,
this Court waxed poetic about the right to a jury trial as a quintessential right in
both Florida and the United States. Hurst, 202 So. 3d at 53-59. We called this
right our “birthright and inheritance.” Id. at 54 (quoting Duncan v. Louisiana, 391
U.S. 145, 154 (1968)). Yet, now the Court equates waiver of this “birthright” to
not proceeding with postconviction proceedings—which originally were a judicial
creation to efficiently address the “postconviction crisis” caused in Florida by
Gideon v. Wainwright, 372 U.S. 335 (1963). See Baker v. State, 878 So. 2d 1236,
1238-44 (Fla. 2004) (surveying the history of postconviction relief in Florida).
Silvia did not waive his right to a jury and that jury returned a nonunanimous death
recommendation. Quite simply, to deny him relief is to deny him his right to a jury
trial under the Sixth Amendment and article I, section 22 of the Florida
Constitution, along with his right to be free from an arbitrary death penalty under
the Eighth Amendment and article I, section 17 of the Florida Constitution.
Relatedly, the majority does not make clear whether it treats Silvia’s waiver
of postconviction proceedings as a waiver of his right to habeas corpus. Of course,
- 16 -
habeas corpus constitutes a substantial portion of postconviction proceedings; thus
it would appear that this decision may effectively preclude Silvia and other
similarly situated defendants from filing writs of habeas corpus. If this
understanding is correct, then the decision borders dangerously on a suspension of
these writs to a class of individuals, the right to which is protected under article I,
section 9 of the United States Constitution and article I, section 13 of the Florida
Constitution. In my view, our case law on not proceeding with postconviction
proceedings does not supersede the express language of our Florida Constitution:
“The writ of habeas corpus shall be grantable by right, freely and without cost.”
Art. I, § 13, Fla. Const.
Finally, this decision is ripe for reversal. As demonstrated above, there are a
number of constitutional claims that Silvia can raise from this decision.
Furthermore, unlike Asay which, despite its faults, relied heavily on Florida’s
adequate and independent retroactivity standard under Witt, Asay, 210 So. 3d at
15-22, this decision does not rely on any standard. The reasoning here amounts to
“this is the answer because I say it is.” Considering the fundamental constitutional
rights at issue, such reasoning is an insufficient basis to deny Hurst relief.
Based on the foregoing, I would apply Hurst to Silvia’s case, vacate his
death sentence, and remand for resentencing in accordance with the Constitution,
our precedent, and fundamental fairness.
- 17 -
An Appeal from the Circuit Court in and for Seminole County,
Donna L. Surratt-McIntosh, Judge - Case No. 592006CF004522A000XX
Pamela Jo Bondi, Attorney General, Tallahassee, Florida, and Doris Meacham,
Assistant Attorney General, Daytona Beach, Florida,
for Appellant
James Vincent Viggiano, Jr., Capital Collateral Regional Counsel, and Ali A.
Shakoor, Assistant Capital Collateral Regional Counsel, Middle Region, Temple
Terrace, Florida,
for Appellee
- 18 -