TALLAHASSEE, Fla. – As courts across Florida have scrambled this year to figure out how to apply a new death-penalty law, the resentencing of two men convicted in a notorious Volusia County case known as the “Xbox murders” added to the questions.
Jury selection had started in April in the resentencing of Troy Victorino and Jerone Hunter when Gov. Ron DeSantis signed the law, which eliminated a requirement for unanimous jury recommendations before defendants could be sentenced to death. Under the new law, death sentences can be imposed after 8-4 jury recommendations.
The law has touched off widespread litigation and questions about whether the unanimity requirement should apply to older cases, such as the case of Victorino and Hunter who needed to be resentenced in the 2004 murders. But the Volusia case had the added complication of being in the midst of jury selection when the law took effect.
Volusia County Circuit Judge Randell Rowe ruled that the unanimity requirement should apply, saying that using the new law would violate due-process rights of Victorino and Hunter. Prosecutors appealed, and a panel of the 5th District Court of Appeal overturned Rowe’s ruling.
The panel on Friday followed up by issuing a detailed opinion about why it concluded the new law should apply after jury selection started.
“In sum, this record shows that the change to (the law) was entirely foreseeable to all parties,” said the opinion, written by Judge Harvey Jay and joined fully by Judge Brian Lambert and partially by Judge John Harris. “The record suggests that both sides were cognizant of the impact the new law would have on this proceeding and tailored their litigation strategies — including the scope and even the existence of voir dire (questioning of potential jurors) — to maximize the chance that their preferred version of the statute would apply. It is not for us to comment on the reasonableness of those strategic choices made by experienced attorneys, especially given the inevitably distorting effect of hindsight.”
The ruling also rejected arguments that resentencing the men under the new law would violate what is known as the “ex post facto” clauses in the state and federal constitutions. The clauses prevent creating crimes or increasing penalties for conduct that happened in the past.
Jay wrote that the ex post facto clauses didn’t apply in resentencing Victorino and Hunter because moving away from a unanimity requirement was “procedural.”
“A procedural change — even one that works to a defendant’s disadvantage — is generally not an ex post facto law since it does not alter substantive personal rights,” Jay wrote. “A law is procedural when it alters how a criminal case is adjudicated instead of addressing the substantive criminal law. … Here, the amendment to (the law) is a quintessentially procedural change that has no substantive effect.”
Victorino and Hunter were convicted in the murders of six people in a Deltona home in a case that drew national attention. The case became known as the “Xbox murders” because it involved a dispute about some of Victorino’s belongings, including an Xbox video-game system. Victorino, Hunter and two other men were accused of breaking into the house and bludgeoning the victims with baseball bats.
Victorino and Hunter each received four death sentences. At the time, Florida law only required majority jury recommendations — 7-5 votes — before judges could sentence defendants to death.
But resentencing was ordered after a series of events related to a 2016 U.S. Supreme Court ruling in a case known as Hurst v. Florida and a subsequent Florida Supreme Court decision.
The 2016 U.S. Supreme Court ruling found Florida’s death-penalty sentencing system was unconstitutional because it gave too much authority to judges, instead of juries. The subsequent Florida Supreme Court ruling said juries must unanimously agree on critical findings before judges can impose death sentences and must unanimously recommend the death penalty. The Legislature responded in 2017 by putting such a unanimous requirement in law.
Because their original jury recommendations were not unanimous, resentencing was ordered for Victorino, Hunter and numerous other Death Row inmates.
The Florida Supreme Court in 2020 reversed course on the death penalty and said unanimous jury recommendations were not necessary. That opened the door for the Legislature and DeSantis this year to change state law and go to an 8-4 requirement, instead of requiring unanimity.
The law, however, has spawned questions in a variety of older death-penalty cases.
Rowe wound up in May declaring a mistrial in the Victorino and Hunter resentencing proceedings. Online Volusia County court dockets did not indicate Monday when new proceedings would be held.
The appeals-court panel said the mistrial did not moot the need for issuing Friday’s opinion.
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