Supreme Court of Florida
                             ____________

                          No. SC2023-1298
                            ____________

                    MICHAEL JAMES JACKSON,
                           Appellant,

                                  vs.

                        STATE OF FLORIDA,
                             Appellee.

                         December 18, 2025

PER CURIAM.

     Michael James Jackson and three codefendants robbed,

kidnapped, and ultimately murdered James and Carol Sumner, a

frail couple in ill health, by burying them alive in 2005. Jackson

was convicted of these crimes in 2007 and, for each murder, was

originally sentenced to death after the trial judge followed the jury’s

8-4 advisory recommendation of death.

     Jackson’s death sentences were vacated in 2017 based on this

Court’s holding in Hurst v. State, 

 (Fla. 2016),

receded from in part by State v. Poole, 

 (Fla. 2020),
“that in order for the trial court to impose a sentence of death, the

jury’s recommended sentence of death must be unanimous.” In the

wake of Hurst, the legislature amended section 921.141, Florida

Statutes, to provide that, among other things, a sentence of death

in a jury trial could only be imposed based on a unanimous jury

recommendation of death. See ch. 2017-1, § 1, Laws of Fla.

     For various reasons, Jackson’s resentencing did not take place

until May 2023. By that time, Hurst’s relevant holding and the

corresponding amendment to section 921.141 were no longer in

effect. Rather, in 2020, Poole receded from Hurst’s requirement that

a jury unanimously recommend death. See 297 So. 3d at 491. And

in early 2023—after a nonunanimous (11-1) jury recommendation

of death in a school-shooting case resulted in a life sentence for

that defendant, Nikolas Cruz—the legislature amended section

921.141 to provide that a trial court may impose a sentence of

death based on the recommendation of eight or more jurors. See

ch. 2023-23, § 1, Laws of Fla.

     The 2023 amendments to section 921.141 went into effect

prior to and were applied at Jackson’s resentencing. There, the jury




                                 -2-
again returned 8-4 recommendations of death for each murder, and

the trial court again imposed two death sentences.

     Jackson now appeals, raising fourteen issues, many of which

focus on the 2023 amendments to section 921.141. We have

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

                           I. BACKGROUND

             A. Guilt Phase and Initial Penalty Phase

     The evidence presented at Jackson’s guilt phase was

recounted in our decision on initial direct appeal. See Jackson v.

State, 

 (Fla. 2009). In short, “[i]n July of

2005, Jackson and codefendants Tiffany Ann Cole, Bruce Kent

Nixon, Jr., and Alan Lyndell Wade robbed, kidnapped, and

murdered James and Carol Sumner.” 

. They did so after

“the Sumners allowed Cole and Jackson to stay with them in their

Jacksonville home.” 

 While staying with the Sumners, Jackson

noticed they were “frail and would be easy victims,” and he

“informed Wade of the Sumners’ financial position, which included

$90,000 from the sale of their South Carolina home.” 

 Jackson,

Wade, and Cole hatched a scheme, and Wade invited Nixon to join

them. 

. “At the time of the crimes, Wade and Nixon were


                                  -3-
eighteen years old, and Jackson and Cole were twenty-three years

old.” 

     Days before the murders, and in preparation therefor,

Jackson, Wade, and Nixon dug “a six-foot-deep hole in a remote

area of Georgia.” 

 Then, on the evening of July 8, 2005, after

Carol Sumner allowed Wade and Nixon to enter her house, Wade

and Nixon held the Sumners at “gunpoint” using a “toy gun” and

bound them with duct tape. 

 Jackson then entered the home

“and began searching for bank statements and automated-teller-

machine (ATM) cards.” 

 Wade and Nixon later “ordered the

victims to climb into the trunk of the Sumners’ Lincoln Town Car.”

 With the Sumners “trapped in the trunk of the vehicle,” the

codefendants drove that and another vehicle to the Georgia

gravesite. 

     At the gravesite, the Sumners “were placed in the deep hole,”

, and “buried alive,” 

. Over the next several

days, Jackson was captured by “[p]hoto surveillance . . . using the

Sumner ATM card several times.” 

. Jackson also

impersonated James Sumner during telephone calls with the bank

and the Jacksonville Sheriff’s Office. 

 Ultimately, Jackson, Cole,


                                -4-
and Wade were arrested in South Carolina. 

. Nixon,

who was also arrested, “revealed the burial location,” 

 entered

into a plea agreement, and testified at Jackson’s trial, 

 at 1021 &

n.2. Among other things, Nixon testified that “Jackson was in

charge.” 

.

     For his part, Jackson, both to investigators and at trial,

attempted to pin the kidnapping and murders on Wade and Nixon.

. But the jury convicted Jackson on all counts,

including two counts of first-degree murder. 

.

     In Jackson’s initial penalty phase, he declined to present

mitigation, and the jury “recommended death sentences for the

murders of both victims by votes of eight to four.” 

. The

trial court imposed a death sentence for each murder after finding

eight aggravating factors and concluding that, among other things,

the aggravators “far outweighed” one “statutory” mitigator (age) and

three “nonstatutory” mitigating circumstances. 

     This Court affirmed Jackson’s convictions and sentences on

direct appeal. 

.

    B. Initial Postconviction Motion; Jackson’s Concessions

     Jackson sought postconviction relief under Florida Rule of


                                 -5-
Criminal Procedure 3.851. In 2011, while his motion was pending,

Jackson returned to court to waive all guilt-related issues and to

acknowledge that the crimes were his idea and that he “was, in fact,

the leader.” Jackson v. State, 

 (Fla.

2013). The postconviction court later denied Jackson’s claims. 

. This Court affirmed the denial of postconviction relief and

denied Jackson’s petition for writ of habeas corpus. 

.

    C. Successive Postconviction Motion—Hurst and Poole

     After this Court decided Hurst, “Jackson filed a successive

postconviction motion seeking Hurst relief. The postconviction

court granted Jackson a new penalty phase, and the State did not

appeal the order granting relief.” State v. Jackson, 

,

938 (Fla. 2020). The order granting Jackson a new penalty phase

was issued in June 2017.

     In early 2020, when Poole receded from Hurst’s unanimous-

recommendation requirement, Jackson’s new penalty phase had

not yet begun. Id. at 938-39. Seeking to apply Poole to Jackson’s

case, the State moved the circuit court to dismiss Jackson’s

resentencing and maintain his death sentences. Id. After the

circuit court denied the State’s motion, the State petitioned this


                                 -6-
Court to direct the circuit court to reinstate Jackson’s death

sentences. Id. at 937, 939. This Court denied the State’s petition,

concluding that “Jackson’s vacated death sentences [could not] be

retroactively reinstated.” Id. at 945.

                 D. Jackson’s 2023 Resentencing

     Jackson’s resentencing took place in 2023, after the 2023

amendments to section 921.141 went into effect. Days after the

effective date of the 2023 amendments, Jackson filed a “Motion to

Continue, or in the Alternative, Motion to Proceed Under the

Unanimity Law,” asserting that the statutory changes “raise[d]

multiple objectionable issues.” Jackson later filed additional

motions raising numerous legal arguments against applying the

new statute. His arguments included: res judicata; laches; Eighth

Amendment arbitrariness; bill of attainder; equal protection; lack of

adequate safeguards; proportionality; lack of unanimity rendering

Florida as an extreme outlier; evolving standards of decency; that

the new statute violates Caldwell v. Mississippi, 

(1985); Sixth Amendment right to unanimity; that section

775.022(3), Florida Statutes, required the 2023 amendments to be

applied prospectively; and that text messages between his lead


                                 -7-
prosecutor and a state representative sent during the enactment of

the 2023 amendments precluded the new statute from applying.

     The judge, after holding hearings, denied Jackson’s motions,

concluding that the 2023 amendments applied to the new penalty

phase. The case then proceeded to jury selection.

     During the new penalty phase, the State sought to prove, for

each murder, the same eight aggravators from the initial penalty

phase. In furtherance thereof, the State presented testimony from

certain individuals, including codefendant Nixon’s perpetuated

testimony from Jackson’s 2007 trial (Nixon refused to testify at

Jackson’s resentencing). For his part, Jackson presented the

testimony of family members, friends, character witnesses, and

defense experts. In doing so, Jackson proposed twenty-five

mitigating circumstances, almost all of which (except age) would be

considered “nonstatutory.” See § 921.141(7)(h), Fla. Stat.

     For each murder, the jury unanimously found all eight

aggravators proven beyond a reasonable doubt. After conducting

the weighing process involving the proven aggravators and the

mitigating circumstances found to exist, the jury returned an 8-4

recommendation of death for each murder.


                                -8-
     The circuit court followed the jury’s recommendations and

sentenced Jackson to death for each murder. In doing so, the court

found all eight aggravators found by the jury, assigning weight as

follows: (1) Jackson was previously convicted of a felony and was on

felony probation at the time of the first-degree murder (great

weight); (2) Jackson was convicted of another capital felony prior to

this proceeding (based on the contemporaneous murder) (great

weight); (3) the first-degree murder was committed while Jackson

was engaged in the commission of any kidnapping (great weight); (4)

the first-degree murder was committed for the purpose of avoiding

or preventing a lawful arrest (great weight); (5) the first-degree

murder was committed for financial gain (great weight); (6) the first-

degree murder was especially heinous, atrocious, or cruel (HAC)

(very great weight); (7) the first-degree murder was committed in a

cold, calculated, and premeditated manner without any pretense of

moral or legal justification (CCP) (very great weight); and (8) the

victim was particularly vulnerable due to advanced age or disability

(very great weight).

     The court also found each proposed mitigating circumstance

was established, assigning weight as follows: (1) Jackson was


                                  -9-
prenatally exposed to drugs and alcohol (little weight); (2) Jackson

suffers from neurological deficits relating to prenatal exposure (little

weight); (3) Jackson experienced physical neglect beginning in

infancy (little weight); (4) Jackson was abandoned by his mother at

an early age (little weight); (5) Jackson’s mother promised to visit at

various times before age 11 but never followed through (no weight);

(6) Jackson has never known his father (little weight); (7) Jackson’s

grandfather resented having to raise him (little weight); (8) Jackson

has impaired social skills (no weight); (9) Jackson was bullied as a

child (little weight); (10) At age 12, Jackson’s grandparents

separated. Jackson and his grandmother moved to Boulder Bluff,

where there were more negative influences. This move also took

him away from Stephanie Stewart and her family (some weight); (11)

Jackson’s bad behavior escalated after the move to Boulder Bluff

(little weight); (12) Jackson was exposed to domestic violence in the

home of his aunt (little weight); (13) Jackson’s mother, aunt, and

uncle were substance abusers (little weight); (14) Jackson’s uncle,

with whom he spent a great deal of time, is mentally ill and has

been institutionalized (little weight); (15) Jackson was treated for

Attention Deficit Hyperactivity Disorder (ADHD) off and on during


                                 - 10 -
childhood (little weight); (16) Due to Jackson’s hyperactivity, a

cardboard box was placed around his desk during class at age 9

(little weight); (17) Jackson was held back in third and sixth grades

(little weight); (18) A psychoeducational evaluation was never

performed on Jackson, despite being recommended (no weight); (19)

Jackson has found God and devoted his life to religious study,

earning many certificates for discipleship (little weight); (20)

Jackson accepts responsibility for his actions and has voluntarily

waived appeals relating to his guilt (some weight); (21) Jackson was

23 years old at the time of the offense (little weight); (22) Jackson

has recently formed a relationship with his sister, Melissa Russell

(no weight); (23) Jackson is very important to his grandmother,

Dimples Inabinet, who considers him to be her son (little weight);

(24) Jackson has expressed a desire to teach others about God (no

weight); and (25) Jackson has been diagnosed with

Neurodevelopmental Disorder Associated with Prenatal Alcohol

Exposure (ND-PAE), which is a diagnosis under the Fetal Alcohol

Spectrum Disorder (FASD) umbrella, as well as Traumatic Brain

Injury, Conduct Disorder, Separation Anxiety Disorder, and

Attention Deficit Disorder (some weight).


                                 - 11 -
     After independently weighing the aggravating factors against

the mitigating circumstances, the court “wholly agree[d] with the

jury’s recommendation.” In the end, the court found that “the

aggravating factors heavily outweigh the mitigating circumstances

and that death is the only proper penalty for the murders.”

     This appeal followed.

                             II. APPEAL

     Jackson raises fourteen issues, many of which target the 2023

amendments to section 921.141. We begin our analysis by

reviewing certain statutory (and decisional law) changes, including

the 2023 amendments, that occurred between the time of Jackson’s

crimes and his resentencing. We then explain why none of

Jackson’s issues (or sub-issues) warrant a new penalty phase. In

addressing Jackson’s issues, we first address those targeting the

2023 amendments and then address those alleging errors at his

resentencing proceeding.

                           A. Legal Landscape

     At the time of Jackson’s crimes and initial penalty phase,

section 921.141 authorized a jury, based on a majority vote (7-5), to

recommend an advisory sentence of either life imprisonment or


                                - 12 -
death. See ch. 96-302, § 1, Laws of Fla. The statute also permitted

the trial court to override either recommendation. Florida’s then

capital sentencing scheme was later deemed by the United States

Supreme Court to be unconstitutional on the ground that the

scheme, in violation of the Sixth Amendment, “required the judge

alone to find the existence of an aggravating circumstance” “that is

necessary for imposition of the death penalty.” Hurst v. Florida, 

 (2016).

     In the wake of that Supreme Court decision, the legislature

amended section 921.141 to correct the constitutional infirmity by

providing that the jury must unanimously find the existence of at

least one aggravator to render the defendant eligible for a sentence

of death. See ch. 2016-13, § 3, Laws of Fla. The legislature also

provided that a sentence of death could only be imposed based on a

recommendation of ten or more jurors, and that if fewer than ten

jurors recommend death, then the jury’s recommendation shall be

for a life sentence. Moreover, the legislature provided that the court

could continue to override a recommendation of death but could no

longer override a recommendation of life. See id.




                                - 13 -
     A few months after those legislative changes, this Court

announced holdings that went well beyond the Supreme Court’s

decision. Of relevance, this Court held that the Sixth and Eighth

Amendments require a jury to unanimously recommend a sentence

of death. See Hurst, 

. Following Hurst, the

legislature unsurprisingly amended section 921.141 to provide that

a sentence of death could only be imposed based on a unanimous

jury recommendation. See ch. 2017-1, § 1, Laws of Fla.

     In 2020, Poole recognized the errors in and receded from most

of Hurst, including its unanimous-recommendation holdings. See

297 So. 3d at 491, 504-05. The legislature initially left section

921.141 unchanged after Poole. But in early 2023, months after

the jury in the Parkland shooting case returned a nonunanimous

death recommendation for that defendant (Nikolas Cruz), the

legislature amended section 921.141 to allow a judge to impose a

sentence of death upon the recommendation of eight or more jurors,

and to provide that if fewer than eight jurors recommend death,

then the jury’s recommendation must be for a life sentence. See ch.

2023-23, § 1, Laws of Fla. The legislature left in place the judge’s

ability to override only a recommendation of death.


                                - 14 -
     As noted earlier, the 2023 amendments went into effect prior

to and were applied at Jackson’s resentencing.

             B. Challenges to the 2023 Amendments

     In his initial brief, Jackson raises six issues (with some sub-

issues) targeting the 2023 amendments themselves or their

application at his second penalty phase. Each one fails.

                                   1.

     Jackson attacks the statute’s nonunanimity (8-4) provision on

four grounds. Jackson’s attacks are inadequately briefed,

foreclosed by precedent, and/or otherwise without merit.

                                   a.

     Jackson first asserts that “non-unanimous verdicts allow a

jury to make a decision without the agreement of members in the

minority” and that “[t]his creates a breeding ground for racial

discrimination in conflict with the Fourteenth Amendment’s

guarantee of equal protection and the Eighth Amendment’s

guarantee of capital verdicts uninfected by racial discrimination.”

Jackson references the racial composition of his jury but insists

that his challenge to the statute “is facial, not as applied.” In

support of his claim that there is no set of circumstances in which


                                 - 15 -
the statute can be constitutionally applied, Jackson points to the

legislative record of the 2023 amendments. He offers citations

where, for example, certain witnesses or representatives opined that

the Supreme Court’s decision in Ramos v. Louisiana, 

(2020), undermines Poole, or suggested that nonunanimity might

negatively impact the Black community. Jackson also notes that

certain legislators and witnesses used the label “rogue” or “activist”

to describe the juror who guaranteed a life sentence for Nikolas

Cruz, the defendant in the Parkland shooting case.

     Jackson’s attack—grounded in the Eighth Amendment and in

equal protection—largely relies on Ramos, which acknowledged that

some laws permitting nonunanimous verdicts were designed to

dilute the influence of African-American jurors. 

.

But Ramos involved the Sixth Amendment and “nonunanimous

convictions,” 

, not the Eighth Amendment, equal protection,

or the selection phase of a capital trial. Indeed, the question Ramos

answered in the affirmative was “whether the Sixth Amendment . . .

requires a unanimous verdict to convict a defendant of a serious

offense.” 

; see also 

 (Sotomayor, J., concurring in

part) (“Ramos does not bring an equal protection challenge . . . .”).


                                - 16 -
     In the end, Jackson’s Eighth Amendment claim fails under

existing precedent recognizing that “the Eighth Amendment does

not require a jury’s favorable recommendation before a death

penalty can be imposed.” Poole, 297 So. 3d at 505 (citing Spaziano

v. Florida, 

 (1984)). Jackson does not explain

how a statute requiring eight or more jurors to recommend a death

sentence can facially violate a constitutional provision that itself

does not require a jury recommendation of death.

     As far as equal protection, the State answers that Jackson

“appears to raise a Fourteenth Amendment disparate-impact claim”

under Village of Arlington Heights v. Metropolitan Housing

Development Corp., 

 (1977). Jackson cites Arlington

Heights, but not until his reply brief. Putting aside the imprecise

briefing, Jackson’s challenge fails. Arlington Heights stands for the

proposition that “[p]roof of racially discriminatory intent or purpose

is required to show a violation of the Equal Protection Clause.” 

. Jackson comes nowhere close to “proving” a racially

discriminatory intent or purpose motivated the decision to abandon

unanimity.




                                 - 17 -
                                   b.

     Second, Jackson launches an Eighth Amendment “evolving

standards of decency” attack on nonunanimity. But as Poole

explained, we are bound by Spaziano’s “hold[ing] that the Eighth

Amendment does not require a jury’s favorable recommendation

before a death penalty can be imposed.” Poole, 297 So. 3d at 505.

Jackson’s argument regarding evolving standards is thus

“irrelevant.” Id. at 509 (Lawson, J., concurring specially).

                                   c.

     Third, Jackson asserts that section 921.141 violates the Sixth

Amendment and Hurst v. Florida by not requiring jury unanimity on

the “finding” of whether the aggravators outweigh the mitigating

circumstances found to exist. See § 921.141(2)(b)2.b., Fla. Stat.

This argument also runs up against Poole, which, relying on

Supreme Court precedent, held that the weighing “finding” in

section 921.141 is a “selection finding” and “not a ‘fact’ ” for

purposes of the Sixth Amendment. 297 So. 3d at 503.

                                   d.

     Fourth, Jackson briefly asserts “[i]n the alternative” that “the

Sixth Amendment jury right the framers understood included a


                                 - 18 -
right to unanimity for life and death decisions.” This attack also

fails. See Poole, 297 So. 3d at 504 (“[T]he Sixth Amendment, as

interpreted in Spaziano, does not require any jury recommendation

of death, much less a unanimous one.”).

                                    2.

     Jackson claims that section 775.022(3), enacted in 2019,

barred the “retrospective application of the 2023 amendment to

Florida’s capital sentencing statute.” We reject this claim.

     Section 775.022(3) provides in relevant part that, subject to

exceptions, “the reenactment or amendment of a criminal statute

operates prospectively.” Section 775.022(2) defines “criminal

statute” as “a statute, whether substantive or procedural, dealing in

any way with a crime or its punishment, defining a crime or a

defense to a crime, or providing for the punishment of a crime.”

The parties seemingly agree that the 2023 amendments were

procedural and fall within the definition of “criminal statute.” They

disagree as to whether the 2023 amendments were applied

“prospectively” or “retroactively.” 1 The State gets it right.



     1. In a pretrial motion filed May 12, 2023, and in argument to
the court on May 15, 2023, Jackson focused solely on the statutory

                                  - 19 -
     In Love v. State, 

 (Fla. 2019), we explained that

“whether a new procedural statute applies in a pending case will

generally turn on the posture of the case” and that “if the new

procedure does apply, that is not in and of itself a retrospective

operation of the statute.” Id. at 187. Love held that procedural

changes altering the burden of proof at pretrial immunity hearings

under Florida’s “Stand Your Ground” law applied to pending cases

in which the “immunity hearings . . . take place on or after the

statute’s effective date.” Id. at 188. Doing so was “essentially,

giving the statute prospective application.” Id. Here, we conclude

that applying section 921.141’s procedural changes to a Hurst

resentencing that began after the amendments went into effect, for

crimes that occurred in 2005, was similarly a “prospective




term “prospectively.” Similarly, in his initial brief, Jackson argues
that the 2023 amendment was impermissibly applied “retroactively
to a resentencing . . . for a crime that occurred in 2005.” But in his
reply brief, Jackson shifts the focus of his argument to other
statutory language, namely that “the reenactment or amendment of
a criminal statute . . . does not affect or abate . . . [t]he prior
operation of the statute or a prosecution or enforcement
thereunder.” § 775.022(3)(a), Fla. Stat. This is improper. And we
are hardly persuaded by Jackson’s argument that the 2017 version
of section 921.141 had “prior operation” in his case.


                                - 20 -
application”—one that thus did not run afoul of section 775.022(3).

                                    3.

     Jackson advances a res judicata claim, the gist of which is

that the 2017 order granting Hurst relief was a “final judgment” that

“imposed a duty on the trial court to hold a resentencing that

applied Hurst v. State.”2 Not so.

     “The doctrine of res judicata bars relitigation in a subsequent

cause of action not only of claims raised, but also claims that could

have been raised.” Topps v. State, 

 (Fla.

2004) (citing Fla. Dep’t of Transp. v. Juliano, 

(Fla. 2001)). Here, the 2017 order did no more than confirm that,

under the decisional law at the time, Jackson was entitled to

resentencing.

     Even if the 2017 order contemplated Hurst-compliant

procedures at resentencing, res judicata is still inapplicable. The




     2. The State suggests Jackson’s arguments “more aptly sound
under the law-of-the-case doctrine.” But that doctrine “do[es] not
apply unless the issues are decided on appeal.” State v. McBride,

 (Fla. 2003) (citing Fla. Dep’t of Transp. v.
Juliano, 

 (Fla. 2001)). The 2017 order granting
Hurst relief was never appealed.


                                - 21 -
doctrine is subject to exceptions, including that it yields to

intervening changes in the law. C.f. Thompson v. Thompson, 

 (Fla. 1957) (“[I]t is well settled that res judicata is not a

defense in a subsequent action where the law under which the first

judgment was obtained is different from that applicable to the

second action.” (citing Wagner v. Baron, 

 (Fla. 1953))).

Importantly, we have also said that “resentencing is a de novo

proceeding in which the decisional law effective at the time of the

resentencing applies.” State v. Fleming, 

 (Fla.

2011). Poole, not Hurst, was “the decisional law effective at the time

of [Jackson’s] resentencing.” 

 That we declined to “reinstate[]”

Jackson’s vacated sentences post-Poole, see 306 So. 3d at 937, in

no way meant that Hurst would control at resentencing.

                                     4.

      Jackson argues that the legislature, in response to goading by

his prosecutors, targeted him to ensure that the 2023 amendments

(Senate Bill 450 or SB 450) would apply at his resentencing. This,

says Jackson, “strip[ped] him of the right to a unanimous jury” and

amounted to a “bill of attainder.” See art. I, § 10, cl. 1, U.S. Const.

(“No State shall . . . pass any Bill of Attainder . . . .”); see also art. I,


                                   - 22 -
§ 10, Fla. Const. (“Prohibited laws.—No bill of attainder . . . shall be

passed.”). We disagree.

     In support of his targeting claim, Jackson cites certain

legislator comments made while SB 450 was being enacted. He

claims the comments “highlighted one and only one pending capital

case—this one.” But the comments instead primarily refer to

certain completed cases—perceived miscarriages of justice—that

involved nonunanimous death recommendations, most notably that

of Nikolas Cruz. Indeed, Jackson acknowledged below that “[t]he

catalyst for th[e] new law” was “Cruz’s life sentence.”

     Jackson also cites text messages between the lead prosecutor

and a legislator (the prosecutor’s former colleague) in which the

prosecutor repeatedly asks if SB 450 would be in effect at the time

of Jackson’s resentencing. These text exchanges, says Jackson,

amount to “goad[ing]” by prosecutors for the legislature to target

Jackson. And yet the first text sent by the prosecutor was on April

13, 2023, weeks after SB 450 had already passed in the senate and

the same day that its companion bill passed in the house.

     Jackson—record cites and all—falls far short of establishing

that SB 450 amounts to a bill of attainder. This Court has said


                                 - 23 -
that “[a] bill of attainder is a law that legislatively determines guilt

for prior conduct and inflicts punishment upon an identifiable

individual without the protections of a judicial trial.” Mayes v.

Moore, 

 (Fla. 2002) (citing Cassady v. Moore,

 (Fla. 1st DCA 1999)). Jackson obviously

cannot meet that definition.

     The Supreme Court has described bills of attainder as

“legislative acts, no matter what their form, that apply either to

named individuals or to easily ascertainable members of a group in

such a way as to inflict punishment on them without a judicial

trial.” United States v. Lovett, 

 (1946). Jackson

cannot meet this definition either.

     SB 450 does not “name[]” Jackson or any other “individuals.”

Nor does SB 450 apply “to easily ascertainable members of a

group.” Rather, SB 450 applies to defendants convicted of capital

murder, including certain Hurst-resentencing defendants like

Jackson. SB 450 is thus a “rule[] of general applicability.” United

States v. Brown, 

 (1965).

     Jackson also provides no authority to support the proposition

that a procedural change “inflict[s] punishment” for purposes of a


                                  - 24 -
bill of attainder. Jackson’s “best” case might be Dugger v. Williams,

 (Fla. 1991), which said that “some procedural

matters have a substantive effect.” 

. But this Court said

that in the context of “ex post facto violation[s].” 

 And Williams

involved the application of a law that impermissibly “diminish[ed] a

substantial substantive advantage that [defendant] would have

enjoyed under the law existing at the time he committed his

offense.” 

. Whatever “substantial substantive advantage”

Jackson “would have enjoyed,” if any, certainly did not “exist[] at

the time he committed [the murders],” when the 7-5 statute was in

effect.

      Finally, Jackson fails to adequately brief the “without a

judicial trial” prong of Lovett. Perhaps that is because the new

procedural rules apply at a trial. We reject this claim.

                                  5.

      Jackson argues that Florida’s “lack of Eighth Amendment

safeguards [has] resulted in an arbitrary, capricious, and

unconstitutional sentence.” Jackson presents both a facial and as-

applied challenge to Florida’s sentencing scheme. We reject both.

      Jackson’s facial challenge is built on the following purportedly


                                 - 25 -
“discarded . . . safeguards”: the abandonment of comparative

proportionality review in Lawrence v. State, 

 (Fla.

2020); the abandonment of relative culpability review in Cruz v.

State, 

 (Fla. 2023); the 2023 amendments;

“aggravator creep”; and this Court purportedly “no longer actively

polic[ing] capital cases for error.”

     This Court has repeatedly rejected similar Eighth Amendment

facial challenges. Last year, for example, this Court rejected a

“safeguards” argument that relied in part on “aggravator creep” and

Lawrence. See Miller v. State, 

, 1127 (Fla.), cert.

denied, 

 (2024); see also, e.g., Wells v. State, 

, 1015 (Fla. 2023) (rejecting facial overbreadth challenge

based on aggravator creep and Lawrence). Our holding in Cruz

“does not alter our analysis.” Wells, 364 So. 3d at 1015. As Cruz

explained, “relative culpability review is neither constitutionally

required nor consistent with ensuring that a constitutional capital

sentence was rendered.” 372 So. 3d at 1245. Nor do the 2023

amendments alter our analysis. Again, “the Eighth Amendment

does not require a jury’s favorable recommendation before a death

penalty can be imposed.” Poole, 297 So. 3d at 505 (citing Spaziano,


                                  - 26 -


). As far as Jackson’s suggestion that this Court

rubber-stamps death sentences, it warrants no response other than

a strong caution to counsel.

     Lastly, in his “facial” challenge, Jackson references the jury

instructions, decisions by the resentencing judge, and other Hurst

resentencings, without explaining how these points factor into a

facial challenge. In any event, we address them elsewhere.

     Jackson’s as-applied challenge largely turns on the fact that

“twice juries have refused to unanimously sentence him to death,”

that no codefendant of his was sentenced (or resentenced) to

death, 3 and that most Hurst-resentencing defendants were

resentenced under the unanimity requirement. According to

Jackson, his sentences turn on “timing and geography”—rather

than on Jackson masterminding the buried-alive murders.

     As an initial matter, the relevance of Jackson’s 8-4 jury



      3. None of Jackson’s codefendants are on death row. As
noted above, Nixon “enter[ed] into a plea agreement” and “received
concurrent sentences of forty-five years’ imprisonment.” Jackson,

 & n.2. Wade and Cole—like Jackson—originally
received death sentences followed by Hurst relief. Unlike Jackson,
however, Wade and Cole were resentenced to life in prison (Wade
under the 12-0 statute, Cole under the 2023 amendments).


                                - 27 -
recommendations is unclear; his current and former sentences were

authorized under the statutory schemes then in effect. Jackson’s

codefendants’ sentences are similarly not relevant; to the extent

Jackson—the self-confessed ringleader—argues relative culpability,

it “is neither constitutionally required nor consistent with ensuring

that a constitutional capital sentence was rendered.” Cruz, 372 So.

3d at 1245. Finally, Jackson’s claim regarding other Hurst

defendants sounds in equal protection and is addressed below.

                                   6.

     Jackson claims his trial and sentence violated equal

protection. Conceding that rational basis review applies, he cites

Village of Willowbrook v. Olech, 

 (2000), arguing

that the State created a “class of one” in that he “so far” is the only

Hurst-resentencing defendant, of the “less than 60 [who] remained

to be resentenced when [Senate Bill 450 became law],” to be

sentenced to death under the 8-4 statute. To the extent this claim

is adequately briefed, it fails. Jackson’s argument is grounded in

the meritless notion that all Hurst-resentencing defendants must

receive the “benefit” of the procedures enacted in response to the

erroneous holdings of Hurst.


                                 - 28 -
     Village of Willowbrook does not support Jackson’s claim.

There, the respondent brought a “class of one” claim against the

Village, and the Supreme Court held that her allegations were

“sufficient to state a claim for relief under traditional equal

protection analysis.” 

. The respondent “allege[d] that

she ha[d] been intentionally treated differently from others similarly

situated and that there [was] no rational basis for the difference in

treatment.” 

. Specifically, she alleged that the Village

demanded a 33-foot easement before agreeing “to connect [her]

property to the municipal water supply,” even though “the Village

only required a 15-foot easement from other property owners.” 

. Here, even assuming Jackson otherwise sufficiently alleges

a claim of equal protection, there is plainly a rational basis for

applying the 2023 amendments at a Hurst resentencing taking

place after the effective date of the procedural amendments.

     For its part, the State says Dobbert v. Florida, 

(1977), controls. Dobbert rejected an equal protection claim from a

petitioner who committed murders prior to Furman v. Georgia, 

 (1972), but was tried and sentenced to death under

Florida’s “new death penalty procedure” enacted after Furman. 432


                                 - 29 -
U.S. at 287-88, 301. Prisoners who were tried and sentenced to

death under Florida’s pre-Furman statute, however, had their death

sentences commuted to life sentences by this Court. 

 at 301

(citing Anderson v. State, 

 (Fla. 1972); In re Baker, 

 (Fla. 1972)). Dobbert rejected the petitioner’s argument

that “the imposition of the death sentence upon him pursuant to

the new statute which was in effect at the time of his trial denie[d]

him equal protection.” 

 Dobbert reasoned that “Florida obviously

had to draw the line at some point” and that the petitioner was

“simply not similarly situated to those . . . whose cases had

progressed sufficiently far in the legal process as to be governed

solely by the old statute.” 

 Jackson’s claim pales in comparison

to the unsuccessful claim in Dobbert.

                C. Alleged Errors at Resentencing

     Jackson’s remaining eight issues focus on decisions by the

judge and statements by the prosecutor. These claims do not

warrant a new penalty phase.

                                  1.

     Jackson claims the court’s final instructions were inaccurate

and misleading in violation of section 921.141 and Caldwell v.


                                - 30 -
Mississippi, 

 (1985). The crux of his claim is that the

court, over “consistent[]” objection, “including under the Eighth

Amendment and Caldwell,” made repeated and unqualified

references to the jury returning a “recommendation,” without

instructing the jury that a “recommendation” of life—unlike a

recommendation of death—was binding on the court. Jackson

notes that the Committee on Standard Jury Instructions later put

out model instructions informing the jury that “[i]f fewer than 8

jurors vote for the death penalty, the Court must sentence the

defendant to life in prison without the possibility of parole.” Fla.

Std. Jury Instr. (Crim.) 7.11. Jackson says the absence of that

instruction (or something like it) misled the jury and lessened the

jury’s sense of responsibility. According to Jackson, had the jury

been informed of its power to issue a binding recommendation of

life, the “four life jurors” would have “fought longer” to secure one

more vote.

     We conclude that the jury should have been instructed about

the binding effect of a life recommendation—that, after all, is

consistent with what the statute says. And it is unclear why that

did not happen. But that was not the nature of Jackson’s


                                 - 31 -
arguments below. Indeed, our review of the record reveals that the

Caldwell issue Jackson advances is not the Caldwell issue argued

below. We disapprove this sleight of hand. And we conclude that

the unpreserved error here was far from fundamental.

                                   a.

     Jackson misrepresents the nature of defense counsel’s

“consistent[]” objections. The objections were that the term

“recommendation” by itself—despite its use in section 921.141—

diminished the jury’s sense of responsibility. Indeed, Jackson’s

position, articulated prior to the penalty phase, was that the

amended statute itself violates Caldwell.

     The relevant events began on May 10, 2023, when Jackson

filed a motion raising objections to the 2023 amendments. Among

other things, Jackson raised a Caldwell claim challenging the

amended statute. He claimed that the statute’s repeated use of the

term “recommendation,” when “viewed in combination with the jury

receiving permission to recommend a sentence of death with the

agreement of only eight jurors,” ultimately “bake[d] Caldwell error

into the statute (which will inevitably be included in the jury

instructions).” (Emphasis added.) Thus, Jackson’s claim focused on


                                 - 32 -
the word “recommendation” and on nonunanimous death

recommendations, not on the effect of a life recommendation.

     Jackson’s motion provides the relevant backdrop and shows

what defense counsel had in mind when defense counsel began

repeatedly voicing instruction-based objections during the penalty

phase whenever the judge said “recommendation.” As early as the

questioning of one potential juror during jury selection, after the

judge mentioned “a jury recommendation,” defense counsel

“[o]bject[ed] to recommendation” and “object[ed] to the

recommendation language.” In overruling the objection, the judge

noted “that that’s exactly what the statute says in the jury

instruction.” Later, during the questioning of a different prospective

juror, defense counsel objected on the same ground and was given

“a standing objection.” Simply put, defense counsel’s objections

were not to—as Jackson claims—the “unadorned and unqualified

use of the term ‘recommendation,’ with respect to a life vote,” but to

the term “recommendation” itself.

     Jackson does point to one instance—the only instance

supported by his record citations—where defense counsel expressed

“concern[] about the idea that it’s suggested to the jury that their


                                - 33 -
verdict is advisory when if they return a verdict of life it is not

advisory. It is life. The Court shall impose it.” But context

matters. Those comments were made after the judge—who was

seemingly under the mistaken impression that the 2023

amendments reverted the law back to the pre-Hurst days—proposed

that the jury instructions not only use the term “recommendation”

but also “advisory.” It was in that context that defense counsel

expressed “concern[]” and noted that “a verdict of life . . . is not

advisory.” The judge responded by saying: “But in the instructions

we tell them that if their recommendation is life that’s it. It’s over.”

Defense counsel then promptly agreed with the judge by saying

“Right.” This agreement reflects counsel’s belief that the

instructions included the binding-effect language—meaning that

counsel would have had no reason to argue that its omission

resulted in Caldwell error. As such, this exchange reinforces that

the binding effect of a life recommendation was not the basis of

defense counsel’s repeated objections.

     In closing arguments, defense counsel at one point even stated

to the jury that “the law makes the final decision the Judge has.”

But counsel made other statements strongly suggesting the jury


                                  - 34 -
could bind the judge with a “life recommendation.” Indeed, counsel

not only said that “[i]t takes five jurors to get a life sentence,” but

counsel went on to “assure” the jurors that the judge would “follow

[their] recommendation” and that, in the end, “[their] decision is the

final decision.”

     As to the final charge, the judge did not use the term

“advisory,” instead using the terms “verdict,” “decision,” and, of

course, “recommendation.” The judge also instructed the jurors to

act with “regard to the gravity of the[] proceedings” and implored

them to “carefully consider and weigh the evidence realizing that a

human life is at stake.” Although the judge and defense counsel

had agreed the instructions would inform jurors of the binding

effect of a life recommendation, the instructions—for unexplained

reasons—did not. But that oversight, which gave rise to the issue

advanced on appeal, was not the issue argued below.

                                    b.

     As just shown, Jackson quietly attempts to transform defense

counsel’s Caldwell objections into a different Caldwell and

instructional error claim on appeal. This he cannot do.

     As to the jury instruction, yes, there was error in the sense


                                  - 35 -
that the court failed to specify how the jury’s recommendation

would inform the scope of the judge’s sentencing discretion. But we

disagree with Jackson that the court “misled” the jury into believing

the court could simply disregard its recommendation. 4 Quite the

opposite.

     As an initial matter, the judge in the final charge not only used

the term “recommendation,” but also the terms “verdict” and

“decision.” Moreover, the judge instructed the jurors to act with

“regard to the gravity of the[] proceedings” and implored them to

“carefully consider and weigh the evidence realizing that a human

life is at stake.” Obviously, the judge conveyed to the jury the

significance of its role rather than minimizing its responsibility.

Even defense counsel, after explaining that “[i]t takes five jurors to

get a life sentence,” “assure[d]” the jurors—without objection—that




      4. Jackson’s “instructional error” claim relies solely on Butler
v. State, 

 (Fla. 1986), in which an “extremely
misleading and confusing jury instruction” amounted to harmful
error. 

. Butler is easily distinguished. Putting aside that
the issue there was preserved, the instruction was not only
“unrelated to the evidence,” 

, but it “was misleading and
contradictory” in the sense that it “virtually negated the defendant’s
only defense, that of self-defense,” 

.


                                 - 36 -
their “decision is the final decision.”

     There is plainly no fundamental error. It cannot be said that

the unpreserved error here “reaches down into the validity of the

trial itself to the extent that the jury’s recommendation of death

could not have been obtained without the assistance of the alleged

error.” Cruz v. State, 

, 715 (Fla. 2021) (citing Smiley

v. State, 

, 172 (Fla. 2020)). Jackson, of course—

given that he portrays an unpreserved claim as “consistent[ly]”

argued—does not explain how any error here would be

fundamental.

     Jackson does, however, offer a theory of prejudice—one that is

devoid of merit and, perhaps unsurprisingly, cannot be squared

with the record. Jackson theorizes that, if instructed on their

power to return a binding life recommendation, then the “four life

jurors” would have “fought longer” to secure one more vote. That

theory is not only speculative, but it is wholly at odds with defense

counsel’s own statements to the jury. Jackson fails to mention that

defense counsel stressed to the jurors during closing arguments

that, as was discussed during jury selection, they were not to

attempt to sway other jurors. Indeed, counsel reminded them that


                                  - 37 -
they had “promised” and “agreed” “to not bully, not force someone

to change their opinion, not to go against someone’s opinion, to let

them make their individual decision.”

     As to Caldwell, even putting aside Jackson’s improper

presentation of his transformed Caldwell claim, we are hardly

convinced by Jackson’s briefing that the instructional error here

amounts to a Caldwell violation.

     Caldwell addressed “whether a capital sentence is valid when

the sentencing jury is led [by the prosecutor] to believe that

responsibility for determining the appropriateness of a death

sentence rests not with the jury but with the appellate court which

later reviews the case.” 

. The Caldwell plurality

concluded “that the prosecutor’s argument rendered the capital

sentencing proceeding inconsistent with the Eighth Amendment’s

heightened ‘need for reliability in the determination that death is

the appropriate punishment in a specific case.’ ” 

 (quoting

Woodson v. North Carolina, 

 (1976)). Justice

O’Connor wrote separately, concluding that “the prosecutor’s

remarks were impermissible because they were inaccurate and

misleading in a manner that diminished the jury’s sense of


                                - 38 -
responsibility.” 

 (O’Connor, J., concurring in part and

concurring in the judgment).

     The Supreme Court has since explained that Justice

O’Connor’s position in Caldwell was “controlling” and that the

“infirmity identified in Caldwell” was thus that the jury was

“affirmatively misled regarding its role in the sentencing process.”

Romano v. Oklahoma, 

 (1994). Here, the jury was not

“affirmatively misled” in the way the jury was in Caldwell, even

more so given that the judge implored the jurors to “carefully”

perform their duty and be mindful of “the gravity of the[]

proceedings.”

     Jackson points to two state supreme court decisions, namely

Commonwealth v. Montalvo, 

 (Pa. 2019), and Clark v.

Commonwealth, 

 (Ky. 1991), that seemingly stand

for the broad proposition that the repeated use of the term

“recommendation” violates Caldwell. See Montalvo, 

; Clark, 

. That proposition, of course, was the

issue Jackson advanced below, not the issue he advances on

appeal. In any event, Clark and Montalvo are distinguishable for

various reasons, including that the law in those jurisdictions


                                - 39 -
seemingly rested the sentencing decision solely in the hands of “the

jury,” Montalvo, 

, and “not . . . the trial judge,”

Clark, 

.

     For some reason, Jackson does not cite other decisions that

are more like the mutated Caldwell claim he attempts to advance

on appeal. See, e.g., Mapes v. Coyle, 

 (6th Cir.

1999) (rejecting a “ ‘recommendation’ issue” Caldwell claim in

which the defendant argued that the judge “repeatedly told the jury

that its job was merely to recommend a sentence,” even though,

under the relevant Ohio statute, “a ‘recommendation’ not to impose

the death penalty would be binding on the court”); cf. Jones v.

United States, 

 (1999) (citing Romano and

rejecting the notion “that a death sentence is arbitrary within the

meaning of the Eighth Amendment if the jury is not given any bit of

information that might possibly influence an individual juror’s

voting behavior”).

      In the end, Jackson falls far short of establishing that a new

penalty phase is warranted.

                                   2.

     Jackson, citing Lockett v. Ohio, 

 (1978), and


                                 - 40 -
Eddings v. Oklahoma, 

 (1982), claims the court

violated the Eighth Amendment by barring the jury’s consideration

of codefendant Wade’s life sentence. Jackson argues that Wade’s

life sentence was a mitigating factor. And he cites decisions in

which this Court—without deciding the issue—mentioned that a

codefendant’s sentence was considered as “mitigation.” E.g., Hertz

v. Jones, 

 (Fla. 2017).

     The State counters by citing cases from other jurisdictions

holding that a codefendant’s life sentence is not “mitigation,” see,

e.g., Coulter v. State, 

 (Ala. Crim. App. 1982),

and by arguing that informing the jury about a codefendant’s

sentence would lead to “a trial-within-a-trial” regarding the

codefendant’s “aggravation and mitigation.” The State alternatively

argues that, given Wade’s prior death sentence that was reversed

only because of Hurst, any probative value of Wade’s life sentence

would be “substantially outweighed by the danger of unfair

prejudice, confusion of issues, [or] misleading the jury.” See §

90.403, Fla. Stat.; see also Meyer v. Branker, 

(4th Cir. 2007) (holding “that the Constitution does not mandate

admission of a co-perpetrator’s sentence”).


                                - 41 -
     We conclude that Jackson’s Eighth Amendment claim was not

preserved in the manner now being presented. And any error falls

far short of fundamental error.

     The relevant events began with the State’s “Motion in Limine

Regarding Proportionality” filed on May 27, 2022—before Jackson’s

and Wade’s cases were severed. In its motion, the State sought an

order “prohibiting arguments or questions regarding the

comparison of this death penalty case with other murders.” Citing

this Court’s decision in Lawrence, the State reasoned that “no juror

could ever properly conduct a proportionality analysis as [to] all

other death penalty cases.” (Emphasis added.)

     At a hearing on May 31, 2022, defense counsel for Wade

sought to distinguish “appellate proportionality review” from

“mitigation.” Wade’s counsel did so in the context of seeking to

argue that Wade was “not the worst of the worst.” After the judge

expressed his understanding that the State’s motion applied only to

jury selection, the prosecutor indicated that the motion was

intended to apply throughout trial but only encompassed “unknown

cases.” Indeed, the prosecutor had “no problem with defense

counsel saying Mr. Wade is not the worst of the group.” The judge


                                  - 42 -
again indicated “that the matter [regarded] jury selection,” in which

case he “agree[d]” with the State. Days later, the court entered an

order granting in part and denying in part the State’s motion “to the

extent Defendant may not rely upon other specific unrelated cases

in making proportionality arguments.”

     Fast forward one year to May 22, 2023, after the State rested

its case in Jackson’s new penalty phase. (Wade had since been

resentenced to life.) Counsel for Jackson brought up the State’s

proportionality motion from a year earlier and indicated to the judge

that “pursuant to [the court’s order],” the defense intended to

introduce Wade’s judgment and sentence. After objection, the

judge—who also presided over Wade’s resentencing—indicated that

the jury was “not going to know what sentence I was imposing

against Mr. Wade.” Defense counsel pressed the court on whether

it was “reversing [its] prior ruling.” After the judge admitted to

having “no clue” whether any ruling was being reversed, the judge

reiterated, “It’s not coming in.” Defense counsel then “want[ed] the

record to be clear” in terms of the court’s 2022 ruling regarding

“making proportionality arguments.”

     The Eighth Amendment claim Jackson advances was simply


                                 - 43 -
not preserved. The only argument Jackson raised below was that

the 2022 order regarding “proportionality arguments” somehow

authorized an eventual life sentence for Wade to later be presented

to Jackson’s jury. Defense counsel for Jackson never mentioned

“mitigation,” Lockett, Eddings, the Eighth Amendment, or any

decision from this Court. Other record citations by Jackson do not

establish that this issue was properly presented. 5 In the end, any

error that may have occurred was far from fundamental.

                                 3.

     Jackson claims that, in violation of the Sixth and Eighth

Amendments and Florida law, he was precluded from impeaching

codefendant Nixon, whose perpetuated testimony from Jackson’s

2007 trial was introduced after Nixon refused to testify at Jackson’s



     5. For example, Jackson cites “a hearing in April of 2022,”
before the State filed the “proportionality” motion, at which the
prosecutor stated that he had not researched whether it would be
“appropriate” to “comment[] on another jury’s verdict.” That
comment came in the context of discussing whether a verdict in one
codefendant’s case would be sealed before completion of the other
case. In response, counsel for Wade argued that “it possibly might
deny [Wade] a possible mitigator” if Jackson received a life sentence
and then Wade was prevented from “argu[ing] the fact that [Wade]
was less culpable.” This exchange hardly supports the conclusion
that Jackson—in May 2023—preserved the claim he advances.


                               - 44 -
resentencing in 2023. Jackson says that Nixon recanted at

codefendant Wade’s resentencing in 2022 and that when Jackson

sought to introduce that recantation, the judge denied the request.

According to Jackson, the judge’s decision resulted in “a death

verdict from a jury oblivious to the fact that a key state witness had

recanted.” In his reply brief, Jackson concedes that no specific

objection or legal argument was presented after the judge denied

the request. Jackson thus requests “revers[al] under the preserved

general objections or under fundamental error.” We reject this

claim.

     At Wade’s resentencing, Nixon briefly attempted to limit his

own culpability. After Nixon testified that Wade told him they had

to dig a hole, that they stole shovels, that Nixon found the remote

location, and that Nixon, Wade, and Jackson dug the hole, the

prosecutor asked if Nixon knew or later learned the purpose of the

hole. Nixon began purportedly recanting by answering in the

negative. He also said that his prior testimony was what his lawyer

“wanted [Nixon] to say.” At that point, the court took a recess, and

Nixon never returned to testify. Nixon attempted to explain himself

outside the jury’s presence, including that he was on drugs at the


                                - 45 -
time of the murders. Nixon later invoked the Fifth Amendment.

     At Jackson’s resentencing, Nixon again invoked the Fifth

Amendment, and the judge found Nixon “unavailable to testify.”

Days later, defense counsel “ask[ed] to introduce Mr. Nixon’s prior

testimony [from Wade’s resentencing].” The judge, who was aware

of the content of that testimony, denied the request. Defense

counsel moved on without objection or any legal argument.

     Even assuming the court erred, Jackson cannot establish

fundamental error. Indeed, any error would be harmless beyond a

reasonable doubt given, among other things, Jackson’s own

admissions—including in court—regarding his involvement as the

mastermind of the crimes. Nixon’s purported recantation does not

undermine the factual narrative of the murders. See Jackson, 

. Nor would it undermine any aggravator or

bolster any proposed mitigating circumstance.

                                 4.

     Jackson claims the prosecutor’s “repeated misconduct”

deprived Jackson of a fair sentencing trial. Jackson points to more

than a dozen comments by the prosecutor and places them into two

categories: (1) comments denigrating mitigation; and (2) comments


                               - 46 -
injecting fear and emotion into the sentencing determination.

     The record reveals that, other than three alleged denigration

remarks, the comments all went without proper objection. We

separately address the two categories of alleged errors, and we

conclude that although the prosecutor may have made questionable

comments at times, the comments fall well short—individually or

cumulatively—of amounting to fundamental error. Including the

objected-to comments, no new penalty phase is warranted.

                                  a.

     This Court has said “that a prosecutor cannot improperly

denigrate mitigation during a closing argument.” Delhall v. State,

 (Fla. 2012) (quoting Williamson v. State, 

 (Fla. 2008)). Jackson claims the prosecutor

denigrated mitigation in its entirety and several of its components.

We first address the few comments met with any objection.

     The first objected-to comment was that “[m]itigation is a

biased, paid for industry.” But that comment, viewed in context,

does not “appear[] designed to invalidate the mitigation entirely.”

Id. at 168. Rather, the comment appears aimed at establishing the

bias of Jackson’s paid experts. Indeed, immediately after that


                                - 47 -
comment and later in closing, the prosecutor challenged the

experts’ testimony, including by questioning the suggestion that

Jackson was “[s]everely brain damaged,” given that his IQ was “well

over a hundred.” We find no harmful error.

     Second, after arguing that Jackson “was the leader, he was

the oldest, he was the felon, not the 18[-]year[-]old kids he got to do

his work for him,” the prosecutor said this: “Judge him not by what

you heard in this courtroom. Judge him by when he was free.”

This comment was objected to as a “mischaracterization of the law.”

And the judge informed the jurors that he “will tell [them] what the

law is when it comes time to do it.” We find no reversible error.

     Third, Jackson objected when the prosecutor questioned

whether Jackson’s “remorse” was something for which he was

“supposed to get credit.” This comment was made in the context of

the prosecutor explaining to the jurors that it was their job to

“decide whether or not it’s mitigation to say you are sorry after you

are caught” or whether Jackson was instead attempting to avoid

death row. We have said that a prosecutor can “attempt[] to rebut

mitigating evidence argued by the defense,” Cruz, 320 So. 3d at 718

(alteration in original) (quoting Poole v. State, 

, 395


                                 - 48 -
(Fla. 2008)), including “nonstatutory mitigating evidence of

remorse,” Walton v. State, 

 (Fla. 1989) (citing

Agan v. State, 

 (Fla. 1983)). Here, the prosecutor did

just that, questioning the sincerity of Jackson’s remorse and, in

support, referencing past actions by Jackson. Moreover, the

prosecutor “did not label the mitigation as aggravation.” Cruz, 320

So. 3d at 718. We find no harmful error.

     Finally, the prosecutor, during cross-examination of defense

expert Dr. Ouaou, asked—over objection—whether the results of

neuropsychological testing performed by Dr. Ouaou “excuse[d]”

Jackson’s actions. This Court has said that “[i]mproper denigration

includes comments characterizing mitigation as ‘flimsy,’ ‘phantom,’

and ‘excuses.’ ” Id. (quoting Carr v. State, 

(Fla. 2015)). That did not happen here. The prosecutor’s isolated

use of the word “excuse” was made in the context of asking about

Jackson’s mental status and whether the testing results suggested

he lacked the ability to know it was wrong “to bury two people

alive.” We find no harmful error.

     As to the unobjected-to comments, they do not support a

finding of fundamental error. Regarding mitigation in its entirety,


                                - 49 -
Jackson points to this comment by the prosecutor: “Do not judge

him by the clergy who visit him or by the lectures from paid

advocates but by his behavior when he was free.” Although not

particularly well-worded, the comment appears designed to “simply

urge less weight” to the mitigators, Delhall, 

, and

more weight to the aggravation. Indeed, the prosecutor’s reference

to Jackson’s “behavior when he was free” was followed by this

comment: “This is the type of evidence that Lady Justice considers

powerful, weighty.”

     Regarding mitigation “components,” Jackson points to certain

additional comments regarding his “remorse.” But, again, the

prosecutor was permitted to “attempt[] to rebut mitigating evidence

argued by the defense.” Cruz, 320 So. 3d at 718 (alteration in

original) (quoting Poole, 

).

     Jackson also points to comments about his “Messianic Jewish

faith.” One of Jackson’s proposed mitigators was that he has found

God and devoted his life to religious study. Among other things,

Jackson presented testimony from his spiritual advisor, John

Slatten, who testified about Messianic Jewish faith, including that

“regular Jews don’t accept us,” and testified that Jackson was “the


                                - 50 -
most ardent and zealous follower of Jesus of Yeshua that [Slatten]

minister[ed] to in prison.” Jackson points to three unobjected-to

comments, namely: (1) that Jackson was a “South Carolina kid that

somehow celebrat[es] Passover like he is a religious Jew”; (2) that

“Jews for Jesus” was “a small fringe religion”; and (3) that the jury

should “not judge [Jackson] by the clergy who visit him.” The State

correctly asserts that the prosecution may “call[] into doubt the

sincerity of [Jackson’s] professed beliefs.” But the State concedes

that some of these comments “approached a line.”

     We conclude that the first two comments were clearly

inappropriate. 6 Those comments did not simply challenge the

sincerity of Jackson’s profession of certain beliefs. Instead, they

disparaged the religious beliefs that he professed. The comments

focused on the content of the beliefs—not the sincerity with which

they were held. Nevertheless, we cannot conclude, on this record,

that the two otherwise isolated comments amount to fundamental




      6. We note that the ethical rules governing lawyer conduct
specifically prohibit “knowingly, or through callous indifference”
“disparag[ing]” a party “on account of . . . religion.” R. Regulating
Fla. Bar 4-8.4(d).


                                 - 51 -
error, i.e., error without which “the jury’s recommendation [and the

sentence] of death could not have been obtained.” Allen v. State,

, 311 (Fla. 2025) (alteration in original) (quoting

Colley v. State, 

, 17 (Fla. 2020)); see Ritchie v. State,

, 386 (Fla. 2022) (rejecting claim of cumulative

fundamental error and concluding that “the interests of justice d[id]

not require a new penalty phase” where certain unobjected-to

“improper prosecutorial comments were isolated statements in an

otherwise proper closing argument that, on the whole, asked the

jury to return a death recommendation based on the evidence”).

     For his part, Jackson does not explain how these two

inappropriate comments support a finding of fundamental error.

Nor do the two cases he cites support such a finding. See Cutter v.

Wilkinson, 

 (2005) (addressing “the question

whether [the Religious Land Use and Institutionalized Persons Act

of 2000]’s institutionalized-persons provision, § 3 of the Act, is

consistent with the Establishment Clause of the First Amendment”);

Dawson v. Delaware, 

 (1992) (holding

that “the First and Fourteenth Amendments prohibit[ed] the

introduction in a capital sentencing proceeding of the [irrelevant]


                                 - 52 -
fact that the defendant was a member of an organization called the

Aryan Brotherhood,” and noting that the wrongful admission of the

evidence would be subject to harmless error review on remand).

     As to the final unobjected-to comment in this category,

Jackson argues the prosecutor invalidated Jackson’s right to

present state-funded experts when the prosecutor made certain

comments, including “let’s analyze what the $40,000 gets you,

analyze whether or not it’s garbage in and garbage out.” Although

the prosecutor could have been more tactful, the bias of the paid

experts was, again, fair game, particularly given that the prosecutor

in closing also engaged with their testimony.

                                  b.

     Nor do the unobjected-to comments in the second category—a

“dissertation on evil” and a “golden rule” violation—support a

finding of fundamental error.

     This Court has said that “a prosecutor may not ‘impermissibly

inflame[] the passions and prejudices of the jury with elements of

emotion and fear.’ ” Cruz, 320 So. 3d at 720 (alteration in original)

(quoting Brooks v. State, 

 (Fla. 2000)). Cruz

also said that a prosecutor may not give a “dissertation on evil,” 

                                - 53 -
(quoting King v. State, 

 (Fla. 1993)), which

“effectively caution[s] the jurors that they would be cooperating with

evil should they recommend[] life imprisonment,” 

 But “the use

of the term evil alone during closing statements does not entitle a

defendant to a new trial.” Rigterink v. State, 

(Fla. 2016) (citing Lugo v. State, 

 (Fla. 2003)).

     Here, the prosecutor framed this case as an attempt to punish

evil crimes. In opening, for example, the prosecutor referenced the

“evil . . . acts,” the “vile and cruel acts,” the “soulless darkness

where these crimes were conceived,” and that “some evil is just too

great to tolerate,” before referencing “the especially heinous,

atrocious and cruel that one human being is capable of.” See Fla.

Std. Jury Instr. (Crim.) 7.11(8) (addressing HAC aggravator and

defining “heinous” to mean “extremely wicked or shockingly evil”).

The prosecutor used similar language in closing.

     Perhaps the prosecutor could have used the word “evil” with

less frequency. But the cases on which Jackson relies, namely

Cruz, 

, and Rigterink, 

, do not

support a finding of fundamental error. In Cruz, the defendant

“failed to show how the prosecutor’s comments improperly inflamed


                                  - 54 -
the passions of the jury and amount[ed] to fundamental error.” 320

So. 3d at 720. And in Rigterink, this Court found that “[t]o the

extent [the prosecutor’s closing remarks describing the defendant

as evil] were used to support the HAC aggravating factor, they were

improper.” 

. But this Court concluded that the

defendant “failed to establish prejudice.” 

 We reasoned that HAC

was otherwise proven and so was the prior violent felony

aggravator, “two of the weightiest aggravating circumstances.” 

Here, unlike in Rigterink, the prosecutor’s remarks were largely

aimed at the defendant’s acts, not at the defendant himself.

Moreover, this case involves eight aggravators—including HAC and

prior violent felony. And there is no suggestion that HAC was not

otherwise proven. Lastly, we note that Jackson himself used the

phrase “evil spirit” during his confession to a news show. Jackson

is not entitled to a new penalty phase.

     Jackson next claims that the prosecutor’s comments regarding

“evil” and “soulless darkness” impermissibly framed Jackson as

“inherently dangerous.” This, says Jackson, was prohibited by

Delhall. This case falls short of Delhall, where “the prosecutor

argued numerous times, sometimes over objection and sometimes


                                - 55 -
without objection, that [the defendant] is ‘violent,’ ‘dangerous,’ that

he ‘can’t be fixed,’ that ‘he acts with violence,’ and ‘[f]rom a school

child he was violent.’ ” 

 (second alteration in

original). Delhall vacated the death sentence based on “cumulative

errors” that included “improper advocacy . . . even after an objection

was sustained” and after the court “specifically admonish[ed] [the

prosecutor] to stop.” 

. That is not this case.

     Jackson also claims the prosecutor impermissibly “used his

opening to bolster the State’s decision to pursue death.” Jackson

cites this comment: “The state is presenting this case because some

evil is just too great to tolerate. . . . Some evil can only sufficiently

be punished by imposing a just sentence of the ultimate

punishment.” This, says Jackson, runs afoul of cases like Pait v.

State, 

 (Fla. 1959), where the prosecutor

wrongly “conveyed to the jury the fact that he and his staff had

considered the matter before trial and had concluded that the death

penalty should be requested.” See also Brooks v. State, 

 (Fla. 2000) (concluding that trial court abused its

discretion in overruling defense counsel’s objection “that the

prosecutor impermissibly argued ‘prosecutorial expertise’ ”). Here,


                                  - 56 -
the prosecutor’s comments are less direct than those in Pait or

Brooks and fall more into the “appropriate” realm of “urg[ing] the

jury to prescribe the supreme penalty on the basis of the evidence

which the jury hears.” Pait, 

.

     Lastly, Jackson claims the prosecutor violated the “golden

rule” of summations. A “golden rule” argument impermissibly

“invite[s] the jurors to place themselves in the victim’s position

during the crime and imagine the victim’s suffering.” Braddy v.

State, 

 (Fla. 2012) (quoting Mosley v. State, 

 (Fla. 2009)). Improper “golden rule” arguments

also include “creating an imaginary first-person script depicting the

victim’s suffering or death.” 

 at 849 (citing Urbin v. State, 

 (Fla. 1998)).

     Here, Jackson says the prosecutor fabricated an “imaginary

script” of the victims’ dying thoughts. He points to the following

comment the prosecutor made in closing while arguing for HAC:

          You know, Carol and Reggie Sumner saw a gun in
     that house. Remember the little toy gun, the little BBs?
     And when they are in that hole and they realize that they
     are not getting out of that hole they may have thought
     about that gun putting two bullets in the back of their
     heads in this.



                                 - 57 -
That comment was met by an objection of “[i]mproper argument,”

which was overruled. That “nonspecific objection” does “not

preserve[]” “an imaginary first-person script . . . golden rule

argument.” Id. at 850. And Jackson certainly cannot establish

fundamental error.

     As an initial matter, it is not entirely clear that, as Jackson

asserts, “[t]he prosecutor wanted the jury to imagine a suffering so

great that the victims wished for an execution-style death.” It

seems plausible that the prosecutor instead suggested that the

victims wondered if they were going to be executed. In any event,

theorizing whether the victims—while duct-taped and in the hole—

wondered about the “gun” with which they were earlier held at

“gunpoint,” seems like a reasonable inference based on the

evidence. This case is more like Rogers v. State, 

(Fla. 2007). There, the prosecutor theorized that, while dying from

two stab wounds, the victim was “reflecting back on her life,”

including “on her children that she would never see again” and “on

her mother who loved her so dearly.” 

. Rogers concluded

that the “arguments were not improper because they were based

upon facts in evidence—the victim was stabbed twice, she struggled


                                 - 58 -
with her assailant, and she remained alive for at least a short

period of time,” and that “the prosecutor was describing the

heinousness of the crime for the purpose of establishing the HAC

aggravator.” 

 Here, the comments can similarly be said to be

“common-sense inference[s]” made in the context of arguing for

HAC. See 

 (quoting Banks v. State, 

 (Fla.

1997)).

                                  5.

     Jackson asserts that the four preceding points of error—i.e.,

(1) Caldwell and instructional error; (2) Wade’s life sentence; (3)

Nixon’s impeachment; and (4) prosecutorial misconduct—are

“indisputable errors . . . subject to cumulative-error analysis.” And

he says that the cumulative prejudice was not “harmless beyond a

reasonable doubt.” That statement, of course, assumes that the

alleged errors were properly preserved. But as just explained, other

than three alleged denigration-of-mitigation comments by the

prosecutor (none of which involve harmful error), none of the

alleged errors were preserved. So, the more appropriate question is

“whether the combined prejudice resulting from any errors . . .

amounts to fundamental error.” Ritchie, 344 So. 3d at 388. And we


                                 - 59 -
unhesitatingly answer in the negative.

     We have already concluded that any potential errors in the

prosecutor’s comments do not cumulatively amount to fundamental

error. Because Nixon’s supposed recantation does not undermine

Jackson’s confessions or impact any aggravation or mitigating

circumstances, any error in excluding that recantation has no effect

on a cumulative-error analysis. Nor does the omission in the jury

instruction add much weight in favor of Jackson. Indeed, we have

little reason to believe the jury viewed its role as anything but

immensely important. Lastly, even assuming that the fact of

Wade’s life sentence was nonstatutory “mitigation,” we conclude

that any error falls short of being “outcome-determinative,” id. at

389, for purposes of the fundamental error standard.

                                  6.

     Jackson requests a remand for a new sentencing order on the

ground that the court failed to explain why it gave “no weight” to

five “established” nonstatutory mitigating circumstances. See supra

Section I.-D (circumstances 5, 8, 18, 22, and 24). Jackson claims

the court violated the Eighth Amendment under Eddings by

“refusing to consider” those five circumstances. And he asserts that


                                 - 60 -
“under Florida caselaw, which clashes with Eddings, trial judges

must at least give written justification for refusing to give any

weight to mitigation.” We conclude that no remand is warranted.

     In Rogers v. State, 

 (Fla. 2019), after outlining

the requirements for a capital sentencing order, this Court

reiterated that “the determination of mitigating and aggravating

circumstances and the respective weight assigned to each [are]

within the trial court’s discretion.” Id. at 889 (alteration in original)

(quoting Griffin v. State, 

 (Fla. 2002)). And this

Court receded from the “requirement that a trial court expressly

articulate why the evidence presented warranted the allocation of a

certain weight to a mitigating circumstance.” Id. at 890.

     Months later, this Court in Newberry v. State, 

(Fla. 2019), rejected the defendant’s argument that “the trial court

erred when it found five mitigating circumstances were established

but ‘not mitigating.’ ” Id. at 1048-49. This Court found no abuse of

discretion, reasoning it was “apparent that the trial court

considered each of the mitigating circumstances proposed by [the

defendant] and determined that such circumstances were in fact

not mitigating and assigned them no weight.” Id. at 1049. Here, it


                                 - 61 -
appears the trial court similarly considered each proposed

mitigating circumstance, including five that the court determined

“were in fact not mitigating and assigned them no weight.” Id.

Accordingly, we find no error.

     Eddings does not require a different conclusion. Eddings

reversed a death sentence where, in violation of Lockett, “the

sentencer” had impermissibly “refuse[d] to consider, as a matter of

law, any relevant mitigating evidence,” 

, even

though “Lockett requires the sentencer to listen” to mitigating

circumstances presented by the defendant, 

 at 115 n.10. Here,

the trial court listened. That the trial court accorded no weight to

certain asserted mitigating factors does not violate Lockett. See

Trease v. State, 

 (Fla. 2000) (recognizing that

Lockett “do[es] not preclude the sentencer from according [a]

mitigating factor no weight”).

                                  7.

     Jackson claims the court “constitutionally erred in permitting

racially discriminatory cause exclusions of jurors opposed to the

death penalty.” Jackson sought an order barring death

qualification of his jury. Citing certain studies and “[r]acism in


                                 - 62 -
government and the criminal justice system,” Jackson argued that

death qualification in Duval County disproportionately excludes

“jurors of color,” which would deprive Jackson of “the right to have

a jury that is representative of ones [sic] peers.” The court denied

Jackson’s motion. The court did not err in doing so.

     Jackson largely recounts the contents of a study that

“examined twelve Duval County capital trials,” and he “lists the

races and selection outcomes” of jurors in his case. Jackson does

not point to any individual potential juror who was erroneously

excluded. Instead, he argues that people of color—despite, in his

words, having “greater opposition to the death penalty”—are

disproportionately excluded from capital juries.

     Jackson cannot sidestep Lockhart v. McCree, 

(1986), which held “that the Constitution does not prohibit the

States from ‘death qualifying’ juries in capital cases.” 

. In

doing so, Lockhart declined to extend “[t]he limited scope of the fair-

cross-section requirement” to “petit juries, as opposed to jury

panels or venires.” 

. Lockhart further concluded that

“death qualification” would not violate the “fair-cross-section

requirement” “even if [the Court] were willing to extend the fair-


                                - 63 -
cross-section requirement to petit juries.” 

. Lockhart

reached its decision over a dissent warning that death qualification

would “disproportionately affect the representation of blacks on

capital juries.” 

 (Marshall, J., dissenting).

     Jackson argues that the dissent in Lockhart “knew better”

than the majority. To the extent Jackson seeks to overturn

Lockhart, he is in the wrong venue.

                                   8.

     Finally, Jackson claims the court abused its discretion by

denying his motion seeking a continuance or, in the alternative, to

proceed under Hurst. He presents two points of error. First, he

asserts that the failure to continue the case until after model jury

instructions were released resulted in the trial court erroneously

charging the jury. Second, he asserts that the denial of his motion

“deprived his lawyers of a meaningful opportunity to research and

raise all viable challenges to the new law.” We reject both points.

     The abuse of discretion standard regarding a trial court’s

ruling on a motion for continuance “is generally not met ‘unless the

court’s ruling on the continuance results in undue prejudice to the

defendant.’ ” Smith v. State, 

 (Fla. 2015)


                                 - 64 -
(quoting Snelgrove v. State, 

 (Fla. 2012)).

Jackson cannot establish undue prejudice.

     Jackson’s point of error regarding the jury charge is just a

repackaging of his failed Caldwell claim. And as to Jackson’s

claimed deprivation of an opportunity to raise “all viable

challenges,” the record reflects that—as outlined earlier—defense

counsel raised and argued numerous challenges, including: res

judicata; arbitrariness; bill of attainder; equal protection; lack of

adequate safeguards; evolving standards of decency; statutory

Caldwell violation; right to unanimity; and section 775.022(3)

precluding retroactivity. Jackson fails to identify any meritorious

challenge he would have raised had he been granted a continuance.

Indeed, at one hearing, defense counsel asserted there were

“perhaps” additional arguments that could be made.

                          III. CONCLUSION

     For the reasons stated above, we affirm the death sentences

imposed at Jackson’s resentencing.

     It is so ordered.

MUÑIZ, C.J., and CANADY, COURIEL, GROSSHANS, FRANCIS, and
SASSO, JJ., concur.
LABARGA, J., concurs in result with an opinion.


                                 - 65 -
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION
AND, IF FILED, DETERMINED.

LABARGA, J., concurring in result.

     “The unusual severity of death is manifested most clearly in its

finality and enormity. Death, in these respects, is in a class by

itself.” Furman v. Georgia, 

 (1972) (Brennan, J.,

concurring).

     Today’s decisions in Hunt v. State, No. SC2024-0096 (Fla.

Dec. 18, 2025), and Jackson v. State, No. SC2023-1298 (Fla.

Dec. 18, 2025), reject challenges to the 2023 statutory amendment

that now requires only eight members of a twelve-person capital

jury to vote to recommend the death penalty, and I concur in the

result to the extent that these decisions are consistent with what

this Court has held since State v. Poole, 

 (Fla. 2020).

However, I write to underscore that the 8-4 threshold renders

Florida the absolute outlier among states that impose the death

penalty. Florida now has the lowest standard in the nation,

requiring the fewest number of jurors to recommend the death

penalty.




                                - 66 -
     When Hurst v. Florida 7 returned to this Court on remand from

the United States Supreme Court, I eagerly joined the majority in

Hurst v. State, 8 which held in part that the United States and

Florida constitutions required a jury’s recommendation of death to

be unanimous. When a majority of this Court receded from the

unanimity requirement little more than three years later in Poole, I

strenuously dissented to the majority’s conclusion that Hurst v.

State was wrongly decided.

     Since Poole, this Court has consistently held that the

constitution does not require a unanimous recommendation of

death. My vote to concur in result is an acknowledgment of this

precedent. However, the concerns I expressed in my dissent in

Poole remain. There, I lamented this Court’s removal of jury

unanimity as a safeguard in Florida’s death penalty jurisprudence,

and I emphasized Poole’s effect of “return[ing] Florida to its status

as an absolute outlier among the jurisdictions in this country that




     7. Hurst v. Florida, 

 (2016).

      8. Hurst v. State, 

 (Fla. 2016), receded from in
part by State v. Poole, 

 (Fla. 2020).


                                 - 67 -
utilize the death penalty.” Poole, 297 So. 3d at 513 (Labarga, J.,

dissenting). At that time, section 921.141, Florida Statutes, had

been amended in light of Hurst v. State to require a unanimous

recommendation of death—and the statute continued to require

unanimity until it was amended in 2023.

     Among the states that continue to impose the death penalty,

only Alabama and Florida permit a nonunanimous jury

recommendation of death. See § 13A-5-46(f), Ala. Code (2025)

(requiring at least 10 members of the jury to recommend a sentence

of death); § 921.141(2)(c), Fla. Stat. (2025) (requiring at least eight

members of the jury to recommend a sentence of death). Thus,

Florida now falls below even the state of Alabama’s requirement

that at least 10 members of the jury recommend that a capital

defendant be sentenced to death. What is more, even the federal

death penalty statute requires a unanimous jury recommendation.

See 

(e).

     In my view, a jury’s unanimous recommendation of death

provides a narrowing function that is wholly warranted in this state

that, with 30 exonerations, still leads the nation in exonerations

from death row. Death Penalty Information Center,


                                 - 68 -
https://deathpenaltyinfo.org/state-and-federal-info/state-by-

state/florida (last visited Nov. 12, 2025). While a majority of this

Court has held that this Court’s interpretation of permissible

safeguards in the death penalty context is limited by the conformity

clause of the Florida Constitution, I continue to fundamentally

disagree that interpretations by the United States Supreme Court

constitute a ceiling and not a floor.

     For these reasons, and because I continue to adhere to the

views expressed in my dissent in Lawrence v. State, 

(Fla. 2020) (receding from the decades-long practice of conducting

proportionality review in direct appeals of sentences of death), I can

only concur in the result.

An Appeal from the Circuit Court in and for Duval County,
    Michael R. Weatherby, Judge
    Case No. 162005CF010263CXXXMA

Cassandra Stubbs and Brian W. Stull of American Civil Liberties
Union, Capital Punishment Project, Durham, North Carolina,
Megan D. Byrne and Alexandra C. Valdez of American Civil Liberties
Union, Capital Punishment Project, New York, New York, and
Daniel Tilley of American Civil Liberties Union Foundation of
Florida, Miami, Florida,

     for Appellant




                                 - 69 -
James Uthmeier, Attorney General, Jeffrey Paul DeSousa, Acting
Solicitor General, and Michael Mervine, Senior Assistant Attorney
General, Tallahassee, Florida,

     for Appellee

Christopher D. Belelieu of Gibson, Dunn & Crutcher LLP, New
York, New York,

     for Amici Curiae Representatives Yvonne Hinson, Bracy Davis,
     Michele Rayner, Dianne Hart, Senator Dwight Bullard, NAACP
     Florida State Conference, and Equal Ground Education Fund

Melanie C. Kalmanson of Quarles & Brady, LLP, Tampa, Florida,

     for Amici Curiae Florida Association of Criminal Defense
     Lawyers, the Florida Public Defender Association, Advancing
     Real Change, Inc., Conservatives Concerned About the Death
     Penalty, Craig Trocino, Esq., Death Penalty Focus, Florida
     Justice Institute, Floridians for Alternatives to the Death
     Penalty, the National Association of Criminal Defense Lawyers,
     Ripley Whisenhunt, PLLC, Witness To Innocence, and The 8th
     Amendment Project




                               - 70 -