TABLE OF CONTENTS

TABLE OF CONTENTS i

TABLE OF AUTHORITIES ii

PROCEDURAL HISTORY OF CASE 1

JURISDICTION 4

SUMMARY OF THE ARGUMENTS 5

ARGUMENT I

A. APPRENDI'S APPLICATION TO FLORIDA'S OVERRIDE SCHEME 6

B. APPRENDI IS A FUNDAMENTAL CHANGE IN LAW 16

ARGUMENT II

A. ARBITRARY APPLICATION OF TEDDER TO MR. MILLS' CASE 21

1. An Overview of the Jury Override in Florida 21

2. The Court's Inconsistent Application of Tedder 29

3. Keen Establishes the Arbitrary Application of

Tedder to Mr. Mills' Override Death Sentence 32

a. Mr. Mills' Override 32

b. Keen Establishes that Tedder was Not Properly

Applied to Mr. Mills' Case 39

TABLE OF AUTHORITIES

Almendarez-Torres v. United States,

523 U.S. 224 (1998) .................. 14

Amazon v. State,

487 So. 2d 8 (Fla. 1986) ................ 27

Apprendi v. New Jersey,

120 S. Ct. 2348 (2000) ..................9

Arizona v. California,

103 S. Ct. 1382 (1983) ................. 48

Barclay v. State,

470 So. 2d 691 (Fla. 1985) ............... 26

Barclay v. State/Dougan v. State,

343 So. 2d 1266 (Fla. 1977) .............. 24

Barfield v. State,

402 So. 2d 377 (Fla. 1981) ............... 25

Barrett v. State,

649 So. 2d 219 (Fla. 1994) ............... 28

Bedford v. State,

589 So. 2d 245 (Fla. 1991) ............... 28

Blair v. State,

698 So. 2d 1210, 1213 (Fla. 1997) ........... 19

Bolender v. State,

422 So. 2d 833 (Fla. 1982) ............... 25

Boyett v. State,

688 SO. 2d 308 (Fla. 1996) ............... 29

Brookings v. State,

495 So. 2d 135 (Fla. 1986) ............. 27, 45

Brookings v. State, 495 So. 2d 135 (Fla. 1986) ........*

Brown v. Champeau,

Brown v. State,

367 So. 2d 616 (Fla. 1979) ............... 25

Brown v. State,

473 So. 2d 1260 (Fla. 1985) ............ 26, 31

Brown v. State,

526 So. 2d 903 (Fla. 1988) ............... 27

Brunner Enterprises v. Department of Revenue,

452 So. 2d 550 (Fla. 1984) ............... 48

Buckrem v. State,

355 So. 2d 111 (Fla. 1978) ............... 24

Buford v. State,

403 So. 2d 943 (Fla. 1981) ............... 30

Buford v. State,

570 So. 2d 923 (Fla. 1990) ............. 27, 30

Buford v. State,

570 So. 2d 923 (Fla. 1990) ................*

Burch v. State,

343 So. 2d 831 (Fla. 1977) ............... 24

Burch v. State,

522 So. 2d 810 (Fla. 1988) ............... 27

Burford v. State,

403 So. 2d 943 (Fla. 1981) ............... 25

Burr v. State,

466 So. 2d 1051 (Fla. 1985) ............ 26, 30

Burr v. State,

576 So. 2d 278 (Fla. 1991) ............... 30

Caillier v. State,

523 So. 2d 158 (Fla. 1988) ............... 27

Cannady v. State,

Carter v. State,

560 So. 2d 1166 (Fla. 1990) .............. 27

Caruso v. State,

645 So. 2d 389 (Fla. 1994) ............... 28

Chambers v. State,

339 So. 2d 204 (Fla. 1976) ............... 24

Cheshire v. State,

568 So. 2d 908 (Fla. 1990) ............... 27

Christian v. State,

550 So. 2d 450 (Fla. 1989) ............... 27

Christmas v. State,

632 So. 2d 1368 (Fla. 1994) .............. 28

Cochran v. State,

547 So. 2d 928 (Fla. 1989) ............. 27, 32

Coleman v. State,

610 So. 2d 1283 (Fla. 1992) .............. 28

Cooper v. State,

581 So. 2d 49 (Fla. 1991) ............... 28

Craig v. State,

585 So. 2d 278 (Fla. 1991) ............... 28

Craig v. State,

685 So. 2d 1224 (Fla. 1996) .............. 29

Dobbert v. State,

328 So. 2d 433 (Fla. 1976) ............... 24

Dobbert v. State,

375 So. 2d 1069 (Fla. 1979) .............. 25

Dolinsky v. State,

576 So. 2d 271 (Fla. 1991) ............... 28

Douglas v. State,

Douglas v. State,

575 So. 2d 165 (Fla. 1991) ............... 28

Douglas v. Wainwright,

714 F. 2d 1532 (11th Cir.),

cert. granted and remanded, 104 S.Ct. 3575 (1983),

aff'd, 739 F. 2d 531 (11th Cir. 1984) ......... 29

Downs v. State,

574 So. 2d 1095 (Fla. 1991) .............. 28

DuBoise v. State,

520 So. 2d 260 (Fla. 1988) ............... 27

Echols v. State,

Engle v. Florida,

102 S. Ct. 1094 (1988) ................. 23

Engle v. Florida,

485 U.S. 924 (1988) .................. 47

Engle v. State,

510 So. 2d 881 (Fla. 1987) ............. 27, 31

Esty v. State,

642 So. 2d 1074 (Fla. 1994) .............. 28

Eutzy v. Dugger,

746 F. Supp. 1492 (N.D. Fla. 1989),

aff'd, No. 89-4014 (11th Cir. 1990) .......... 30

Eutzy v. State,

458 So. 2d 755 (Fla. 1984) ............. 26, 30

Fead v. State,

512 So. 2d 176 (Fla. 1987) ............... 27

Ferry v. State,

507 So. 2d 1373 (Fla. 1987) .............. 27

Fiore v. White,

121 S.Ct. 712 (2001) ................ 23, 46

Fiore v. White,

121 S.Ct. 712 (2001) ...................*

Francis v. State,

473 So. 2d 672 (Fla. 1985) ............... 26

Freeman v. State,

547 So. 2d 125 (Fla. 1989) ............... 27

Fuente v. State,

549 So. 2d 652 (Fla. 1989) ............. 27, 45

Fuente v. State,

549 So. 2d 652 (Fla. 1989) ................*

Furman v. Georgia,

Garcia v. State,

644 So. 2d 59 (Fla. 1994) ............... 28

Gardner v. Florida,

430 U.S. 349 (1977) ................ 21, 29

Gardner v. Florida,

430 U.S. 349 (1977) ...................*

Gardner v. State,

313 So. 2d 675 (Fla. 1975) ............. 24, 29

Gardner v. State,

313 So. 2d 675 (Fla. 1975) ................*

Gilvin v. State,

418 So. 2d 996 (Fla. 1982) ............... 25

Goodwin v. State,

405 So. 2d 170 (Fla. 1981) ............... 25

Gorham v. State,

454 So. 2d 556 (Fla. 1984) ............... 26

Green v. Georgia,

422 U.S. 95 (1979) ................... 21

Groover v. State,

458 So. 2d 226 (Fla. 1984) ............... 26

Grossman v. State,

525 So. 2d 833, 851 (Fla. 1988) ............ 32

Hall v. State,

381 So. 2d 683 (Fla. 1980) ............... 25

Hallman v. State,

560 So. 2d 223 (Fla. 1990) ............... 27

Hansbrough v. State,

509 So. 2d 1081 (Fla. 1987) .............. 27

Harmon v. State,

Hawkins v. State,

436 So. 2d 44 (Fla. 1983) ............... 26

Hegwood v. State,

575 So. 2d 170 (Fla. 1991) ............... 28

Heiney v. State,

447 So. 2d 210 (Fla. 1984) ............. 26, 30

Heiney v. State,

447 So. 2d 210 (Fla. 1984) ................*

Heiney v. State,

620 So. 2d 171 (Fla. 1993) ............... 31

Herzog v. State,

439 So. 2d 1372 (Fla. 1983) .............. 26

Hitchcock v. Dugger,

481 U.S. 393 (1987) .................. 20

Holsworth v. State,

522 So. 2d 348 (Fla. 1988) ............... 27

Hoy v. State,

353 So. 2d 826 (Fla. 1977) ............... 24

Huddleston v. State,

475 So. 2d 204 (Fla. 1985) ............... 26

Irizarry v. State,

496 So. 2d 822 (Fla. 1986) ............... 27

Jackson v. State,

599 So. 2d 103 (Fla. 1992) ............... 28

Jacobs v. State,

396 So. 2d 713 (Fla. 1981) ............... 25

James v. State,

615 So. 2d 668 (Fla. 1993) ............. 20, 22

James v. State,

Jenkins v. State,

692 So. 2d 893 (Fla. 1997) ............... 29

Johnson v. State,

393 So. 2d 1069 (Fla. 1980) .............. 25

Jones v. State,

332 So. 2d 615 (Fla. 1976) ............... 24

Jones v. State,

559 So. 2d 204 (Fla. 1990) ............... 48

Jones v. United States,

526 U.S. 227 (1999) ................ 10, 17

Jones v. United States,

526 U.S. 227 (1999) ...................*

Keen v. State,

2000 WL 1424523 (Fla. Sept. 28, 2000) ..... 18, 23, 29

Lewis v. State,

398 So. 2d 432 (Fla. 1981) ............... 25

Lockett v. Ohio,

438 U.S. 586 (1978) .................. 20

Lusk v. State,

446 So. 2d 1038 (Fla. 1984) .............. 26

Mahn v. State,

714 So. 2d 391 (Fla. 1998) ............... 29

Malloy v. State,

382 So. 2d 1190 (Fla. 1979) ............ 25, 38

Malloy v. State,

382 So. 2d 1190 (Fla. 1979) ...............*

Marshall v. State,

609 So. 2d 799 (Fla. 1992) ............... 28

Marta-Rodriguez v. State,

Massie v. University of Florida,

570 So. 2d 963 (Fla. App. 1st DCA 1990) ........ 48

Masterson v. State,

516 So. 2d 256 (Fla. 1987) ............... 27

McCampbell v. State,

421 So. 2d 1982) .................... 25

McCaskill v. State/Williams v. State,

344 So. 2d 1276 (Fla. 1977) .............. 24

McCrae v. State,

395 So. 2d 1145 (Fla. 1980) ............ 25, 30

McCrae v. State,

395 So. 2d 1145 (Fla. 1980) ...............*

McCrae v. State,

582 So. 2d 613 (Fla. 1991) ............. 28, 30

McCrae v. State,

582 So. 2d 613 (Fla. 1991) ................*

McCray v. State,

416 So. 2d 804 (Fla. 1982) ............... 25

McKennon v. State,

403 So. 2d 389 (Fla. 1981) ............... 25

McMillan v. Pennsylvania,

477 U.S. 79 (1986) ....................9

Miller v. State,

415 So. 2d 1262 (Fla. 1982) .............. 25

Mills v. Dugger,

559 So. 2d 578 (Fla. 1990) ................5

Mills v. Singletary,

161 F. 3d 1273 (11th Cir. 1998),

cert. denied sub nom

Mills v. Moore, 528 U.S. 1082 (2000) ......6

606 So. 2d 622, 623 (Fla. 1992) .............6

Mills v. State,

476 So. 2d 172 (Fla. 1985) ..............4, 26

Mills v. State,

476 So. 2d 172, 177 (Fla. 1985) .......... 22, 39

Mills v. State,

476 So. 2d 172, 177 (Fla. 1985) .............*

Mills v. State,

603 So. 2d 482 (Fla. 1992) ................5

Mills v. State,

603 So. 2d 482, 486 (Fla. 1992) .......... 33, 48

Mills v. State,

603 So. 2d 482, 486 (Fla. 1992) .............*

Mills v. State,

603 So. 2d 482, 486 (Fla. 1992) .............*

Morales v. State,

580 So. 2d 788 (Fla. 3d DCA 1991) ........... 48

Morris v. State,

Neary v. State,

384 S0. 2d 881 (Fla. 1980) ............... 25

Nelson v. State,

490 So. 2d 32 (Fla. 1986) ............... 27

Norris v. State,

429 So. 2d 688 (Fla. 1983) ............... 26

Odom v. State,

403 So. 2d 936 (Fla. 1981) ............... 25

Parker v. Dugger,

111 S. Ct. 731 (1991) ................. 31

Parker v. State,

458 So. 2d 750 (Fla. 1984) ............. 26, 31

Parker v. State,

458 So. 2d 750 (Fla. 1984) ................*

Parker v. State,

643 So. 2d 1032 (Fla. 1994) .............. 31

Parker v. State,

643 So. 2d 1032 (Fla. 1994) .............. 28

Parker v. State,

643 So. 2d 1032, 1033 (Fla. 1994) ............7

Pentecost v. State,

545 So. 2d 861 (Fla. 1989) ............. 27, 45

Pentecost v. State, 545 So. 2d 861 (Fla. 1989) ........*

Pentecost v. State,

545 So.2d 861, 863 (Fla. 1989) ............. 45

Perez v. State,

648 So. 2d 715 (Fla. 1995) ............... 28

Perry v. State,

Phippen v. State,

389 So. 2d 991 (Fla. 1980) ............... 25

Pomeranz v. State,

703 So. 2d 465 (Fla. 1997) ............... 29

Porter v. State,

400 So. 2d 5 (Fla. 1981) ................ 25

Porter v. State,

429 So. 2d 293 (Fla. 1983) ............. 26, 31

Porter v. State,

429 So. 2d 293 (Fla. 1983) ................*

Porter v. State,

723 So. 2d 191 (Fla. 1998) ............. 31, 49

Porter v. State,

723 So. 2d 191 (Fla. 1998) ................*

Presnell v. Georgia,

439 U.S. 14 (1978) ................... 21

Preston v. State,

444 So. 2d 939 (Fla. 1984) ............... 49

Proffitt v. Florida,

428 U.S. 242 (1976) .................. 22

Provence v. State,

337 So. 2d 783 (Fla. 1976) ............... 24

Ramos v. State,

496 So. 2d 121 (Fla. 1986) ............... 26

Reilly v. State,

601 So. 2d 222 (Fla. 1992) ............... 28

Richardson v. State,

437 So. 2d 1091) .................... 26

Riley v. Wainwright,

Rivers v. State,

458 So. 2d 762 (Fla. 1984) ............... 26

Robinson v. State,

610 So. 2d 1288 (Fla. 1992) .............. 28

Routley v. State,

440 So. 2d 1257 (Fla. 1983) .............. 26

San Martin v. State,

717 So. 2d 462 (Fla. 1998) ............... 29

Savage v. State,

588 So. 2d 975 (Fla. 1991) ............... 28

Sawyer v. State,

313 So. 2d 680 (Fla 1975) ............... 24

Scott v. State,

603 So. 2d 1275 (Fla. 1992) .............. 28

Shue v. State,

366 So. 2d 387 (Fla. 1978) ............... 24

Slater v. State,

316 So. 2d 539 (Fla. 1975) ............... 24

Smith v. State,

403 So. 2d 933 (Fla. 1981) ............... 25

Sochor v. Florida,

504 U.S. 527 (1992) ...................5

Spaziano v. Florida,

468 U.S. 447 (1984) ................ 15, 16

Spaziano v. Florida,

468 U.S. 447 (1984) ...................*

Spaziano v. State,

393 So. 2d 1119 (Fla. 1981) .............. 25

Spaziano v. State,

Spaziano v. State,

433 So. 2d 508 (Fla. 1983) ................*

Spaziano v. State,

433 So. 2d 508 (Fla. 1983) ................*

Spaziano v. State,

433 So. 2d 508, 511-12 (Fla. 1983) ......... 15, 20

Spaziano v. State,

433 So. 2d 508, 511-12 (Fla. 1983) ............*

Spivey v. State,

529 So. 2d 1088 (Fla. 1988) .............. 27

State v. Dixon,

283 So. 2d 1 (Fla. 1973) ................ 22

State v. Dixon,

283 So. 2d 1, 9 (FLa. 1973) .............. 13

State v. Spaziano,

692 So. 2d 174 (Fla. 1997) ............... 31

Stevens v. State,

419 So. 2d 1058 (Fla. 1982) .............. 25

Stevens v. State,

613 So. 2d 402 (Fla. 1992) ............. 28, 31

Stevens v. State,

613 So. 2d 402 (Fla. 1992) ................*

Stokes v. State,

403 So. 2d 377 (Fla. 1981) ............... 25

Strausser v. State,

682 So. 2d 539 (Fla. 1996) ............... 29

Stringer v. Black,

503 U.S. 222 (1992) ...................5

Swan v. State,

Taylor v. State,

294 So. 2d 648 (Fla. 1974) ............... 24

Tedder v. State,

322 So. 2d 908 (Fla. 1975) ....... 13, 18, 23, 24, 34

Tedder v. State,

322 So. 2d 908, 910 (Fla. 1975) ............ 40

Thomas v. State,

456 So. 2d 454 (Fla. 1984) ............. 26, 30

Thomas v. State,

456 So. 2d 454 (Fla. 1984) ................*

Thomas v. State,

546 So. 2d 716 (Fla. 1989) ............... 30

Thompson v. Dugger,

515 So. 2d 173, 175 (Fla. 1987) ............ 20

Thompson v. State,

456 So. 2d 444 (Fla. 1984) ............... 26

Thompson v. State,

553 So. 2d 153 (Fla. 1989) ............. 27, 30

Thompson v. State,

553 So. 2d 153 (Fla. 1989) ................*

Thompson v. State,

731 So. 2d 1235 (Fla. 1998) .............. 31

Torres-Arboleda v. Dugger,

636 So. 2d 1321 (Fla. 1994) .............. 31

Torres-Arboledo v. State,

524 So. 2d 403 (Fla. 1988) ............. 27, 30

Torres-Arboledo v. State,

524 So. 2d 403 (Fla. 1988) ................*

Turner v. State,

VanRoyal v. State,

497 So. 2d 625 (Fla. 1986) ............... 26

Walsh v. State,

418 So. 2d 1000 (Fla. 1982) .............. 25

Walton v. Arizona,

497 U.S. 639 (1990) .................. 14

Washington v. State,

432 S0. 2d 44 (Fla. 1983) ............... 26

Washington v. State,

653 So. 2d 362 (Fla. 1994) ............... 28

Wasko v. State,

505 So. 2d 1314 (Fla. 1987) .............. 27

Webb v. State,

433 So. 2d 496 (Fla. 1983) ............... 26

Welty v. State,

402 So. 2d 1159 (Fla. 11981) .............. 25

White v. State,

403 So. 2d 331 (Fla. 1981) ............... 25

Williams v. State,

386 So. 2d 538 (Fla. 1980) ............... 25

Williams v. State,

622 So. 2d 456 (Fla. 1993) ............... 28

Witt v. State,

387 So. 2d 922 (Fla. 1980) ................6

Witt v. State,

387 So. 2d 922, 929-30 (Fla. 1980) ........... 19

Woodson v. North Carolina,

428 U.S. 280, 305 (1976) ................ 13

Wright v. State,

Zakrzewski v. State,

717 So. 2d 488 (Fla. 1998) ............... 29

Zeigler v. State,

402 So. 2d 365 (Fla. 1981) ............... 25

Ziegler v. State,

sufficient aggravating circumstances as specified in 921.141 and

insufficient mitigating circumstances therein that a sentence of

PROCEDURAL HISTORY OF CASE

Mr. Mills was indicted in Seminole County for first-degree

felony murder and related offenses. Trial commenced before Judge J.

William Woodson on Thursday, August 16, 1979, and the jury returned

Monday, August 20, 1979, the jury recommended Mr. Mills be sentenced

to life imprisonment without the possibility of parole for twenty-five

(25) years. Eight (8) months later, on April 18, 1980, the

trial court overrode the jury's life recommendation and sentenced Mr.

Mills to death, finding six (6) aggravating circumstances: (1) under

sentence of imprisonment; (2) previous conviction of violent felony;

(3) great risk of death to many persons; (4) felony murder; (5)

pecuniary gain; and (6) heinous, atrocious, or cruel. Addressing

mitigating circumstances had been established.

The conviction and override sentence of death were affirmed by

this Court in a 5-2 decision. Mills v. State, 476 So. 2d 172 (Fla.

1985), cert. denied, 475 U.S. 1031 (1986). The Court, however,

the constitutionality of the Court's purported harmless error

analysis on direct appeal. Justice Barkett would have granted habeas

relief on this issue. Mills, 559 So. 2d at 579 (Barkett, J.,

it proper to convict a person for aggravated battery and

simultaneously for homicide as a result of one shotgun blast." Id.

at 177. The Court also struck three (3) of the aggravating

circumstances found by the trial court. The "great risk of death to

many persons" aggravator was struck because "[t]he finding that Mills

knowingly created a great risk of death to many persons was, as the

state conceded, erroneous." Id. at 178. The pecuniary gain factor

was struck due to improper doubling with the felony murder

aggravator. Id. Lastly, the Court struck the "heinous, atrocious,

or cruel" aggravator as inapplicable to the facts of the case. Id.

Following the signing of a death warrant, a Rule 3.850 motion

was filed and summarily denied. On appeal, this Court remanded the

case for an evidentiary hearing "in regards to counsel's failure to

develop and present evidence that would tend to establish statutory

or nonstatutory mental health mitigating circumstances." Mills v.

Dugger, 559 So. 2d 578, 579 (Fla. 1990). The Court also denied a

evidentiary hearing and the lower court's order denying relief, the

So. 2d 482 (Fla. 1992).

Subsequent to the decisions in Stringer v. Black, 503 U.S. 222

(1992), and Sochor v. Florida, 504 U.S. 527 (1992), Mr. Mills sought

habeas corpus relief in this Court challenging both the adequacy of

that Court's harmless error analysis in his case as well as the

application of the "during the course of a felony" aggravating

circumstance. The Court held that Sochor was not new law under Witt

v. State, 387 So. 2d 922 (Fla. 1980), and therefore the claim, raised

for the second time, was procedurally barred. Mills v. Singletary,

606 So. 2d 622, 623 (Fla. 1992). The Court ruled in the alternative

that "[w]e . . . applied, and applied correctly, a harmless error

analysis in Mills' direct appeal." Id. at 623. Regarding the claim

that the felony-murder aggravating factor is an unconstitutional

automatic aggravating circumstance, the Court held: "We considered

and rejected the substance of this claim on direct appeal." Id.

On December 23, 1992, Mr. Mills sought habeas corpus relief in

the United States District Court for the Middle District of Florida.

The district court entered judgment against Mr. Mills on August 18,

1996. The Eleventh Circuit Court of Appeals affirmed. Mills v.

Singletary, 161 F. 3d 1273 (11th Cir. 1998), cert. denied sub nom

JURISDICTION

This is an original action pursuant to Fla. R. App. P.

9.100(a). See also Art. I, § 13, Fla. Const. The Court's

jurisdiction is invoked pursuant to Art. V, § 3(b)(9), Fla. Const.,

and Fla. R. App. P. 9.030(a)(3). The Court also has jurisdiction to

reopen Mr. Mills' previous habeas and appeal proceedings, as well as

to reconsider his motion for rehearing. Parker v. State, 643 So. 2d

1032, 1033 (Fla. 1994). The Court also has jurisdiction to correct

SUMMARY OF THE ARGUMENTS

1. The recent decision of the Supreme Court of the United

States in Apprendi v. New Jersey establishes that the override scheme

under which Mr. Mills was convicted violates the United States and

Florida Constitutions. Pursuant to Apprendi, other than the fact of

a prior conviction, any fact that increases the penalty for a crime

beyond the prescribed statutory maximum must be submitted to a jury

and proved beyond a reasonable doubt. Under the statute in effect at

the time, life imprisonment was the mandatory sentence for first-degree

capital murder, unless the court, after a separate proceeding,

makes findings that the defendant is death eligible. As the Court

held in Apprendi, this violates due process and the Sixth Amendment.

Apprendi is new law which should be retroactively applied to Mr.

Mills.

2. The Court's recent decision in Keen v. State establishes

that, on Mr. Mills' direct appeal, the Court failed to properly apply

the Tedder standard in analyzing the propriety of the judge's

override of the jury's life recommendation. The flaws that the Court

discussed in Keen which warranted relief are also present in Mr.

Mills' case. Any failure to properly apply Tedder to Mr. Mills' case

"hate crime" statute. A grand jury returned a 23-count indictment

charging Apprendi with shootings on four different dates, as well as

the unlawful possession of various weapons. Apprendi, 120 S.Ct. at

2352. None of the counts referred to the New Jersey hate crime

statute, and none alleged that Apprendi acted with a racially biased

purpose. Id. Apprendi pleaded guilty to two counts of second-degree

possession of a firearm for an unlawful purpose, and one count of the

third-degree offense of unlawful possession of an antipersonnel bomb.

Id. Under New Jersey law, a second-degree offense carries a penalty

range of 5 to 10 years; a third-degree offense carries a penalty

range of between 3 and 5 years. Id. If the judge found no basis for

the biased purpose enhancement, the maximum consecutive sentences on

those counts would amount to 20 years in aggregate. Id. If,

however, the judge enhanced the sentence based on a finding of biased

purpose, the maximum on one count alone would be 20 years and the

maximum for the two counts in aggregate would be 30 years, with a

15-year period of parole ineligibility. Id. After holding an

evidentiary hearing on the issue of Apprendi's "purpose" for the

shooting, the judge concluded that, by a preponderance of the

evidence, Apprendi's actions were taken "with a purpose to

intimidate" as provided by the statute. Id. Finding that the hate

crime enhancement applied, the judge sentenced Apprendi to a 12-year

term of imprisonment on the enhanced count, and to shorter concurrent

sentences on the other two counts. Id.

Apprendi appealed, arguing, inter alia, that the Due Process

Clause of the United States Constitution requires that the finding of

bias upon which his hate crime sentence was based must be proved to a

A. APPRENDI'S APPLICATION TO FLORIDA'S OVERRIDE SCHEME.

In Apprendi v. New Jersey, 120 S. Ct. 2348 (2000), the Supreme

Court held that "[o]ther than the fact of a prior conviction, any

fact that increases the penalty for a crime beyond the prescribed

statutory maximum must be submitted to a jury, and proved beyond a

(1970). Apprendi, 120 S.Ct. at 1452. Over dissent, the Appellate

Division of the Superior Court of New Jersey upheld the enhanced

sentence; relying on McMillan v. Pennsylvania, 477 U.S. 79 (1986),

the appeals court found that the state legislature decided to make

the hate crime enhancement a "sentencing factor," rather than an

element of an underlying offense--and that decision was within the

State's established power to define the elements of its crimes.

Apprendi, 120 S.Ct. at 2353. A divided New Jersey Supreme Court

decision in Jones v. United States, 526 U.S. 227 (1999). Apprendi,

120 S.Ct. at 2355. In Jones, the Court, addressing a Fifth and Sixth

Amendment challenge to a federal carjacking statute, held: "under

the Due Process Clause of the Fifth Amendment and the notice and jury

trial guarantees of the Sixth Amendment, any fact (other than prior

conviction) that increases the maximum penalty for a crime must be

charged in an indictment, submitted to a jury, and proven beyond a

of the Apprendi Court's holding is the Sixth Amendment right to trial

by jury, as well as the Fourteenth Amendment right to due process.

Id. at 2355 ("At stake in this case are constitutional protections of

surpassing importance: the proscription of any deprivation of

liberty without `due process of law,' Amdt. 14, and the guarantee

that `[i]n all criminal prosecutions, the accused shall enjoy the

right to a speedy and public trial, by an impartial jury,' Amdt. 6").

"Taken together, these rights indisputably entitle a criminal

defendant to 'a jury determination that [he] is guilty of every

element of the crime with which he is charged, beyond a reasonable

Apprendi and the Sixth and Fourteenth Amendments.

The New Jersey statutory mechanism found unconstitutional in

Apprendi is remarkably similar to the capital sentencing scheme under

which Mr. Mills was charged and convicted. Apprendi concerned the

interplay of four statutes. The first statute, N.J. Stat. Ann. §

2C:39-4(a) (West 1995), defined the elements of the underlying

offense of possession of a firearm for an unlawful purpose. The

second statute, N.J. Stat. Ann. § 2C:43-6(a)(2) (West 1995),

established that the offense is punishable by imprisonment for

"between five years and 10 years." The third statute, N.J. Stat.

Ann. § 2C:44-3(e) (West Supp. 2000), defined additional elements

required for punishment of possession of a firearm for an unlawful

purpose when committed as a "hate crime." The fourth statute, N.J.

Stat. Ann. § 2C:43-7(a)(3) (West Supp. 2000), extended the authorized

additional punishment for offenses to which the hate crime statute

applied. See Apprendi, 120 S.Ct. at 2351. Each statute is

independent, yet the statutes must operate together to authorize

Apprendi's punishment. The Court in Apprendi held that under the due

process clause, all essential findings separately required by both

the underlying offense statute and the statute defining the elements

of punishment had to be charged, tried, and proved to the jury beyond

a reasonable doubt.

the time of Mr. Mills' trial also required the interplay of several

statutes which operate independently but must be considered together

to authorize Mr. Mills' punishment. Mr. Mills was sentenced in 1980

under the provisions of §775.082 (1), Fla. Stat., which provided:

A person who has been convicted of a capital felony shall

be punished by life imprisonment and shall be required to

serve no less than 25 years before becoming eligible for

parole unless the proceeding held to determine sentence

according to the procedure set forth in §921.141 results

in finding by the court that such person shall be punished

by death, and in the latter event such person shall be

punished by death.

Fla. Stat. §921.141 (1979), entitled "Sentence of death or life

imprisonment for capital felonies; further proceedings to determine

sentence" provided:

Upon conviction or adjudication of guilt of a defendant of

a capital felony, the court shall conduct a separate

sentencing proceeding to determine whether the defendant

should be sentenced to death or life imprisonment as

authorized by s.775.082.

Fla. Stat. §921.141(3) further provided in pertinent part:

Notwithstanding the recommendation of a majority of the

jury, the court, after weighing the aggravating and

mitigating circumstances, shall enter a sentence of life

imprisonment or death . . .

If the court does not make the finding requiring the death

sentence, the court shall impose sentence of life

imprisonment in accordance with §775.082.

be punishable by death if the proceedings held to

determine sentence according to the procedure set forth in

s. 921.141 results in findings by the court that such

person shall be punishable by death, otherwise such person

shall be punished by life imprisonment and shall be

ineligible for parole.

§ 775.082 (1), Florida Statutes (1994 Supp.). See 1994 Fla. Sess.

Law Serv. Ch. 94-228 (S.B. 158). Although the newer statute also

poses constitutional problems under Apprendi, that statute is not at

out a scheme whereby the statutory maximum penalty for capital crimes

is life imprisonment unless the court, after holding a separate and

distinct proceeding under §921.141, makes findings of fact that

establish the defendant is death-eligible. Mr. Mills was not

eligible for the death penalty simply upon his conviction of first-degree

murder; if the court were to sentence Mr. Mills after the

conviction, the court would only be able to impose life because

Florida's scheme required the State to prove at least one aggravating

factor beyond a reasonable doubt before the defendant is eligible for

the death penalty. Moreover, the aggravating circumstance(s) must be

sufficiently weighty to call for the death penalty, State v. Dixon,

283 So. 2d 1, 9 (FLa. 1973), and, because this case involved a jury

recommendation of life, the facts had to have been so clear and

convincing that no reasonable person could differ as to the penalty.

Tedder v. State, 322 So. 2d 908 (Fla. 1975).

beyond the maximum authorized statutory sentence," Apprendi, 120

S.Ct. at 2365 n.19. It cannot be seriously debated that the

"differential" between a sentence of life imprisonment with the

possibility of parole after 25 years and a sentence of death "is

unquestionably of constitutional significance." Id. at 2365. See

also Woodson v. North Carolina, 428 U.S. 280, 305 (1976) ("Death, in

its finality, differs more from life imprisonment than a 100-year

prison term differs from one of only a year or two. Because of the

qualitative difference, there is a corresponding difference in the

need for reliability in the determination that death is the

appropriate punishment in a specific case"). Under Apprendi and

consistent with due process and the Sixth Amendment right to trial by

jury, the elements relied on by the State to enhance Mr. Mills'

punishment under § 775.082 had to be charged and found beyond a

reasonable doubt by the jury. This was not done, and the result is

that Mr. Mills' death sentence is unconstitutional under both the

United States and Florida Constitutions.

The Apprendi Court addressed whether its decision impacted

"state capital sentencing schemes requiring judges, after a jury

verdict holding a defendant guilty of a capital crime, to find

specific aggravating factors before imposing a sentence of death."

Apprendi, 120 S.Ct. at 2366 (citing Walton v. Arizona, 497 U.S. 639

under the Walton-type of scheme (i.e. judge sentencing states), "are

not controlling," citing Justice Scalia's dissent in Almendarez-Torres

v. United States, 523 U.S. 224 (1998):

Neither the cases cited, nor any other case, permits a

judge to determine the existence of a factor which makes a

crime a capital offense. What the cases cited hold is

that, once a jury has found the defendant guilty of all

the elements of an offense which carries as its maximum

penalty the sentence of death, it may be left to the judge

to decide whether the maximum penalty, rather than a

lesser one, ought to be imposed . . . The person who is

charged with actions that expose him to the death penalty

has an absolute entitlement to jury trial on all the

elements of the charge."

Apprendi, 120 S.Ct. at 2366 (citing Almendarez-Torres, 523 U.S. at

257 n.2 (Scalia, J., dissenting). While the majority decision in

Apprendi suggested that Walton was distinguishable, four justices

strongly suggested that Walton had in fact been overruled, Apprendi,

120 S.Ct. at 2387-89 (O'Connor, J., dissenting, joined by Rehnquist,

C.J., Breyer and Kennedy, J.J.), and a fifth justice explicitly left

the door open to reexamining the continuing validity of Walton for

another day. Id. at 2380 (Thomas, J., concurring). The Apprendi

majority's distinction of Walton, as the dissenters suggested, is

illogical and at odds with the new rule of law announced by the

Apprendi majority. Be that as it may, however, Mr. Mills submits

that Walton's applicablilty to Florida's override sentencing scheme,

particularly in light of the unique circumstances of his case, is

Apprendi's reasoning is even more potent in Mr. Mills' case,

which involves an override of the jury's recommendation of life

imprisonment. Under Apprendi, as applied to Florida's unique capital

sentencing scheme, the jury must determine death eligibility in order

to not violate due process and the Sixth Amendment right to trial by

jury. However, "[t]he Florida death penalty procedure is not based

on a controlling jury recommendation concerning sentencing" but

rather is "advisory only." Spaziano v. State, 433 So. 2d 508, 511-12

(Fla. 1983). See also Spaziano v. Florida, 468 U.S. 447 (1984).

Contrary to the constitutional underpinnings of Apprendi, because

Florida jury's sentencing decision is not binding on a court, a trial

court's ability to override a jury's sentencing decision violates due

process and the Sixth Amendment right to trial by jury. Once Mr.

Mills' jury returned its life recommendation, Mr. Mills was acquitted

of the death penalty under Apprendi and therefore must be sentenced

to life at this time.

Mr. Mills recognizes that the Supreme Court, in 1984, upheld

the constitutionality of Florida's override scheme in Spaziano v.

Florida, 468 U.S. 447 (1984). Spaziano addressed various

constitutional attacks on Florida's override scheme, including an

Eighth Amendment challenge, a Double Jeopardy challenge, and a Sixth

Amendment trial by jury challenge. That decision, as well as this

uniqueness of capital sentencing proceedings, the "normal presumption

that a judge is the appropriate sentencing authority does not apply

in the capital context." Spaziano, 468 U.S. at Stevens, J.,

concurring in part and dissenting in part). As Justice Stevens

wrote:

The same consideration that supports a constitutional

entitlement to a trial by jury rather than a judge at the

guilt or innocence stage--the right to have an authentic

representative of the community apply its lay perspective

to the determination that must precede a deprivation of

liberty--applies with special force to the determination

that must precede a deprivation of life. In many respects

capital sentencing resembles a trial on the question of

guilty, involving as it does a prescribed burden of proof

of given elements through the adversarial process. But

more important than its procedural aspects, the life-or-death

decision in capital cases depends on its link to

community values for its moral and constitutional

legitimacy.

Id. at 482-83. Justice Stevens later dissented in Walton, labeling

as "unfortunate" the Court's decision in Spaziano. Walton, 497 U.S.

at 714. See also id. at 709 ("The Court holds ... that a person in

not entitled to a jury determination of facts that must be

v. State, 433 So. 2d 508 (Fla. 1983), must be revisited in light of

Apprendi. The Supreme Court in Spaziano determined that while a

capital sentencing proceeding is "like a trial" for Double Jeopardy

purposes, this "does not mean that it is like a trial in respects

significant to the Sixth Amendment's guarantee of a fair trial." Id.

at 459. Certainly, the Spaziano Court's conclusion that "[t]he Sixth

Amendment never has been thought to guarantee a right to a jury

determination of that issue" is in irreconcilable conflict with the

the Sixth Amendment requires the opposite conclusion.") In Jones v.

United States, 526 U.S. 227 (1999), Justice Stevens, concurring,

wrote that the right to jury trial "encompasses facts that increase

the minimum as well as the maximum permissible sentence, and also

facts that must be established before a defendant may be put to

death." Id. at 253 (Stevens, J., concurring). In so writing,

Justice Stevens concluded that the Court in Walton "departed from

that principle" and "should be reconsidered in due course." Id.

Ironically, Justice Stevens authored the Apprendi decision wherein he

acknowledged the difficulty in reconciling Walton but simply wrote

that the capital cases "are not controlling." Apprendi, 120 S.Ct. at

2366. It was this incongruence that the dissenters in Apprendi could

not logically explain. See id. at 2388 (O'Connor, J., dissenting)

("Indeed, at the time Walton was decided, the author of the Court's

opinion today understood well the issue at stake. . . If the Court

does not intend to overrule Walton, one would be hard pressed to tell

Circumstances it "intends to present to the jury as grounds upon

which the State expects to seek the death penalty" (R. 604). The

State listed four (4) aggravating circumstances: that Mr. Mills was

under a sentence of imprisonment at the time of the crime; that Mr.

Mills was previously convicted of a felony (Aggravated Assault); that

the crime was committed during the course of a felony; and that the

crime was heinous, atrocious, or cruel (R. 604). Those were the only

four aggravating circumstances argued to the jury by the prosecution

(Penalty Phase Transcript, August 20, 1979, at 82-92). The jury

is constitutionally required to make the findings necessary to

increase a punishment beyond the statutory maximum. Apprendi holds

that it must be a jury that makes the death-eligibility determination

beyond a reasonable doubt.

Apprendi's application to Mr. Mills' case is even more clear

because not only did the jury acquit Mr. Mills of the death penalty,

but the State then submitted additional evidence to support

the judge, the prosecution presented additional evidence of criminal

convictions to support the aggravating circumstances (Id. at 19 et.

seq.). Immediately following the presentation by counsel, the trial

court found that all but one of Florida's statutory aggravating

circumstances applied (even ones not argued by the State) (Id. at 45-

the judge discarded the jury's recommendation without undertaking the

required determination of its reasonableness. See Tedder v. State,

322 So. 2d 908 (Fla. 1975); Keen v. State, 2000 WL 1424523 (Fla.

Sept. 28, 2000). See Argument II, infra. While noting that it is

permissible for judges "to exercise discretion--taking into

consideration various factors relating both to the offense and

offender--in imposing a judgment within the range prescribed by

statute", Apprendi, 120 S.Ct. at 2358 (citing Williams v. New York,

337 U.S. 241, 246, 69 S.Ct. 1079)), the Apprendi majority

nevertheless made clear that "nothing in Williams implies that a

judge may impose a more severe sentence than the maximum authorized

by the facts found by the jury." Apprendi, 120 S.Ct. at 2358 n.9.

In Mr. Mills’ case, the judge imposed a sentence of death over the

jury’s recommendation of life. The jury did not make any factual

findings as to death eligibility. In fact, there is no way to know

if the jury found that any aggravating circumstances had been proven

beyond a reasonable doubt. All that is known is that a majority of

the jury believed that a life sentence was appropriate. Apprendi's

not only the Sixth, Eighth, and Fourteenth Amendments, but also the

Florida Constitution. See Art. I, §§ 9, 17, 22, Fla. Const; Blair v.

State, 698 So. 2d 1210, 1213 (Fla. 1997) ("the right to jury trial to

be an indispensable component of our system of justice").

B. APPRENDI IS A FUNDAMENTAL CHANGE IN LAW.

Mr. Mills submits that he should be entitled to the benefit of

Apprendi at this time. In Witt v. State, 387 So. 2d 922, 929-30

(Fla. 1980), this Court held that "major constitutional changes of

law" as determined by either this Court or the United States Supreme

Court are cognizable in postconviction proceedings. Under Witt, for a

new rule of law to apply retroactively, a three-part test is applied.

First, the new rule must originate in either the United States

Supreme Court or the Florida Supreme Court. Second, the new rule

must be constitutional in nature. Third, the new rule must have

fundamental significance.

Apprendi clearly qualifies under all of the Witt criteria, and

the Court is "required by this [Apprendi] decision to re-examine this

matter as a new issue of law." Thompson v. Dugger, 515 So. 2d 173,

175 (Fla. 1987). Mr. Mills submits that Apprendi qualifies under

Witt to be a change in law and also is of such significance as to

defeat any procedural defaults. In Thompson, this Court held

Hitchcock v. Dugger, 481 U.S. 393 (1987), to be a change in Florida

O'Connor and joined by Chief Justice Rehnquist and Justices Breyer

and Kennedy, wrote that the majority decision cast "serious doubt . .

. on sentencing systems employed by the Federal Government and States

alike," and concluded that the decision was "a watershed change in

constitutional law." Apprendi, 120 S.Ct. at 2380 (O'Connor, J.,

potentially affect[ed] a class of petitioners, including Thompson, to

defeat the claim of a procedural default." Id. at 175. See also

Riley v. Wainwright, 517 So. 2d 656 (Fla. 1987) (holding that Lockett

v. Ohio, 438 U.S. 586 (1978), is new law requiring retroactive

application). The same can be said for Apprendi, which can be no

clearer in its rejection of this Court's prior precedent that

Florida's judicial override scheme did not violate due process or the

Sixth Amendment right to jury trial. See Spaziano v. State, 433 So.

2d 508, 511-12 (Fla. 1983). Apprendi represents such a watershed

change in law that Florida defendants should not be required to have

Even if prior presentation of the issue is required in order to

receive the benefit of Apprendi, see James v. State, 615 So. 2d 668

(Fla. 1993), Mr. Mills is still entitled to the benefit of Apprendi.

On direct appeal, appellate counsel challenged Florida's capital

sentencing statute which permitted a trial judge to override a jury's

sentencing recommendation as violative of, inter alia, the state and

due process:

[T]he sentencing judge's rejection of the jury's advisory

verdict of life imprisonment and imposition of the

ultimate punishment constitutes double jeopardy, cruel

and/or unusual punishment, deprivation of Appellant's

right to trial by jury and due process of law established

by U.S. Const. Amend., V, VI, VIII, XIV, and by Fla.

Const. Art. I, §§ 9, 16, 22.

(Initial Brief of Appellant, Mills v. State, No. 59,140, at 45 n.5).

Mr. Mills' appellate counsel further challenged as violative of the

right to jury trial and due process the fact that the State was

permitted to present evidence of aggravating circumstances to the

judge only, not the jury:

[T]he prosecutor and trial judge are not constitutionally

permitted to circumvent the Tedder standards by reserving

additional evidence for the judge alone, after the jury's

life recommendation, as was done in the present case (R.

911-920, 931-932). In Presnell v. Georgia, 439 U.S. 14

(1978), the Court held that fundamental principles of

procedural fairness (due process of law) apply with no

less force at the penalty phase of trial in a capital case

than they do in the guilt-determining phase of any

criminal trial. See also Gardner v. Florida, 430 U.S. 349

(1977), and Green v. Georgia, 422 U.S. 95 (1979).

Pursuant to Presnell, the defendant believes that as a

matter of due process he is entitled to have the existence

and validity of aggravating circumstances determined as

they were placed before his jury. Any other conclusion

which would open the door for a post-jury determination of

aggravating circumstances would not only deprive the

appellant of due process but would also deny him his right

to trial by jury. Post-jury determination of aggravating

circumstances would correlatively destroy the trifurcated

sentencing procedures which were, in great measure, the

basis for the conclusion that capital punishment was

constitutionally permissible. State v. Dixon, 283 So. 2d

1 (Fla. 1973), and Proffitt v. Florida, 428 U.S. 242

1985 that the Court decided the direct appeal. In a motion for

rehearing following the affirmance, Mr. Mills' appellate counsel

argued that the Court overlooked the argument that the override in

921.141, Florida Statutes, creates a system of checks and

balances which requires that the jury's advisory function

not be distorted, lest the whole statutory scheme be

distorted.

that "this Court has previously addressed and specifically or

impliedly rejected challenges to the constitutionality of the Florida

Capital Sentencing Statute" and that "Appellant concedes that he

raises the standard `due process of law' and `cruel and unusual

punishment on its face and as applied' arguments in challenging the

constitutionality of the statute" (Answer Brief of Appellee at 52).

In its direct appeal decision, the Court noted that appellate counsel

"dutifully challenges the constitutionality of Florida's capital

felony sentencing statute, but the arguments raised have been

previously resolved against Mills. . ." Mills v. State, 476 So. 2d

172, 177 (Fla. 1985).

The very arguments made by Mr. Mills on direct appeal have now

been found to be meritorious in Apprendi. Thus, it would be "unfair"

to deprive Mr. Mills of the benefit of Apprendi. James v. State, 615

override a capital sentencing jury's recommendation of life

A. ARBITRARY APPLICATION OF TEDDER TO MR. MILLS' CASE.

Keen v. State, 2000 WL 1424523 (Fla. Sept. 28, 2000),

conclusively establishes that the standard enunciated in Tedder v.

State, 322 So. 2d 908 (Fla. 1975), was arbitrarily not applied to Mr.

Mills' case on direct appeal. The failure to consistently apply

Tedder in this case results in a violation of due process. Fiore v.

White, 121 S.Ct. 712 (2001). In light of Keen and Fiore, Mr. Mills'

case must be revisited at this time and the previous error corrected.

Before addressing the specifics of Mr. Mills' contentions at this

time, a backdrop of the Court's Tedder jurisprudence is required in

order to demonstrate how its application has varied over time,

resulting in a narrow class of cases, such as Mr. Mills' case, where

Tedder was not properly applied at all.

1. An Overview of the Jury Override in Florida. Since the State of

Florida reinstated the death penalty, approximately 150 cases

involving judicial overrides of jury recommendations of life

As is seen from the discussion in this petition, it is clear that

322 So. 2d 908 (Fla. 1975); Slater v. State, 316 So. 2d 539 (Fla.

State, 337 So. 2d 783 (Fla. 1976); Jones v. State, 332 So. 2d 615

scheme is akin to Russian Roulette." Engle v. Florida, 102 S. Ct.

1094, 1098 (1988) (Marshall and Brennan, JJ., dissenting from the

denial of petition for writ of certiorari).

In 1974, one override case was reviewed by this Court, and it

of the seminal decision in Tedder v. State, 322 So. 2d 908 (Fla.

State, 395 So. 2d 1145 (Fla. 1980); Phippen v. State, 389 So. 2d 991

(Fla. 1980); Neary v. State, 384 S0. 2d 881 (Fla. 1980); Hall v.

403 So. 2d 936 (Fla. 1981); McKennon v. State, 403 So. 2d 389 (Fla.

1981); Stokes v. State, 403 So. 2d 377 (Fla. 1981); Smith v. State,

403 So. 2d 933 (Fla. 1981); Welty v. State, 402 So. 2d 1159 (Fla.

11981); Barfield v. State, 402 So. 2d 377 (Fla. 1981); Lewis v.

State, 398 So. 2d 432 (Fla. 1981); Jacobs v. State, 396 So. 2d 713

(Fla. 1981). In two cases, the Court vacated and remanded for judge

resentencings due to Gardner v. Florida error. Porter v. State, 400

State, 402 So. 2d 365 (Fla. 1981); White v. State, 403 So. 2d 331

100% reversal rate. In 1979, three cases were reviewed; two were

2d 1000 (Fla. 1982); Gilvin v. State, 418 So. 2d 996 (Fla. 1982);

State, 419 So. 2d 1058 (Fla. 1982); Miller v. State, 415 So. 2d 1262

439 So. 2d 1372 (Fla. 1983); Richardson v. State, 437 So. 2d 1091)

(Fla. 1983); Hawkins v. State, 436 So. 2d 44 (Fla. 1983); Washington

v. State, 432 S0. 2d 44 (Fla. 1983); Webb v. State, 433 So. 2d 496

State, 433 So. 2d 508 (Fla. 1983); Porter v. State, 429 So. 2d 293

456 So. 2d 454 (Fla. 1984); Groover v. State, 458 So. 2d 226 (Fla.

1984); Parker v. State, 458 So. 2d 750 (Fla. 1984); Gorham v. State,

454 So. 2d 556 (Fla. 1984); Heiney v. State, 447 So. 2d 210 (Fla.

57% reversal rate. In 1983, ten cases were appealed; seven were

476 So. 2d 172 (Fla. 1985); Brown v. State, 473 So. 2d 1260 (Fla.

1985); Francis v. State, 473 So. 2d 672 (Fla. 1985); Burr v. State,

State, 495 So. 2d 135 (Fla. 1986); Nelson v. State, 490 So. 2d 32

State, 516 So. 2d 256 (Fla. 1987); Fead v. State, 512 So. 2d 176

(Fla. 1987); Hansbrough v. State, 509 So. 2d 1081 (Fla. 1987); Ferry

527 So. 2d 182 (Fla. 1988); Brown v. State, 526 So. 2d 903 (Fla.

1988); Caillier v. State, 523 So. 2d 158 (Fla. 1988); Perry v. State,

522 So. 2d 817 (Fla. 1988); Holsworth v. State, 522 So. 2d 348 (Fla.

1988); Burch v. State, 522 So. 2d 810 (Fla. 1988); DuBoise v. State,

because no written findings were entered by the trial judge in

State, 549 So. 2d 652 (Fla. 1989); Freeman v. State, 547 So. 2d 125

(Fla. 1989); Cochran v. State, 547 So. 2d 928 (Fla. 1989); Pentecost

State, 568 So. 2d 908 (Fla. 1990); Carter v. State, 560 So. 2d 1166

(Fla. 1990); Hallman v. State, 560 So. 2d 223 (Fla. 1990); Morris v.

588 So. 2d 975 (Fla. 1991); Craig v. State, 585 So. 2d 278 (Fla.

1991); Wright v. State, 586 So. 2d 1024 (Fla. 1991); McCrae v. State,

582 So. 2d 613 (Fla. 1991); Cooper v. State, 581 So. 2d 49 (Fla.

1991); Dolinsky v. State, 576 So. 2d 271 (Fla. 1991); Downs v. State,

574 So. 2d 1095 (Fla. 1991); Hegwood v. State, 575 So. 2d 170 (Fla.

601 So. 2d 222 (Fla. 1992); Jackson v. State, 599 So. 2d 103 (Fla.

State, 610 So. 2d 1288 (Fla. 1992); Marshall v. State, 609 So. 2d 799

rate of reversal. In 1989, six override cases were analyzed; five

In 1990, five override cases were reviewed by the Court; all

in Williams was the co-defendant of defendants Robinson and Coleman,

649 So. 2d 219 (Fla. 1994); Caruso v. State, 645 So. 2d 389 (Fla.

1994); Esty v. State, 642 So. 2d 1074 (Fla. 1994); Parker v. State,

643 So. 2d 1032 (Fla. 1994); Christmas v. State, 632 So. 2d 1368

State, 682 So. 2d 539 (Fla. 1996); Craig v. State, 685 So. 2d 1224

v. State, 699 So. 2d 1010 (Fla. 1997); Jenkins v. State, 692 So. 2d

reversal rate. In 1996, three override cases were decided, and all

was also afforded a new trial, but the Court's opinion makes clear

Significantly, many of the override cases affirmed on direct

appeal have been reversed on collateral attack in either state or

federal court, thereby decreasing the number of override death

sentences originally affirmed on direct appellate review. The death

sentence upheld in Gardner v. State, 313 So. 2d 675 (Fla. 1975), was

subsequently vacated by the United States Supreme Court. Gardner v.

Florida, 430 U.S. 349 (1977). The death sentence affirmed in Douglas

v. State, 328 So. 2d 18 (Fla. 1976), was subsequently vacated by the

Eleventh Circuit Court of Appeals. Douglas v. Wainwright, 714 F. 2d

1532 (11th Cir.), cert. granted and remanded, 104 S.Ct. 3575 (1983),

aff'd, 739 F. 2d 531 (11th Cir. 1984). The death sentence affirmed

in McCrae v. State, 395 So. 2d 1145 (Fla. 1980), was vacated by a

federal district court for Hitchcock error, and the reimposition of

the death sentence over the jury's life recommendation was reversed

by this Court. McCrae v. State, 582 So. 2d 613 (Fla. 1991). The

death sentence affirmed in Buford v. State, 403 So. 2d 943 (Fla.

1981), was also vacated in federal court due to Hitchcock error, and

this Court reversed the reimposition of death following a

resentencing. Buford v. State, 570 So. 2d 923 (Fla. 1990). The

1984), was vacated by the Court in postconviction also due to

Hitchcock error. Thomas v. State, 546 So. 2d 716 (Fla. 1989). The

death sentence affirmed in Eutzy v. State, 458 So. 2d 755 (Fla.

1984), was vacated by the federal courts because penalty phase

counsel failed to investigate and present mitigating evidence which

would have precluded an override. Eutzy v. Dugger, 746 F. Supp. 1492

(N.D. Fla. 1989), aff'd, No. 89-4014 (11th Cir. 1990). The death

sentence affirmed in Burr v. State, 466 So. 2d 1051 (Fla. 1985), was

subsequently vacated in postconviction because the trial court relied

on improper aggravating circumstances in overriding the jury's life

recommendation. Burr v. State, 576 So. 2d 278 (Fla. 1991). The

death sentences in Heiney v. State, 447 So. 2d 210 (Fla. 1984),

Torres-Arboledo v. State, 524 So. 2d 403 (Fla. 1988), and Thompson v.

State, 553 So. 2d 153 (Fla. 1989), were reversed in postconviction

due to ineffective assistance of penalty phase counsel because

counsel failed to present mitigating evidence which would have

precluded the override. Heiney v. State, 620 So. 2d 171 (Fla. 1993);

Torres-Arboleda v. Dugger, 636 So. 2d 1321 (Fla. 1994); Thompson v.

State, 731 So. 2d 1235 (Fla. 1998). The death sentence affirmed in

Parker v. State, 458 So. 2d 750 (Fla. 1984), was vacated by the

United States Supreme Court in Parker v. Dugger, 111 S. Ct. 731

(1991), and on remand to this Court, the override was reversed.

override was affirmed in Engle v. State, 510 So. 2d 881 (Fla. 1987),

was eventually sentenced to life imprisonment during the pendency of

state collateral proceedings because his co-defendant received life

in Stevens v. State, 613 So. 2d 402 (Fla. 1992). Likewise, the

defendant in Brown v. State, 473 So. 2d 1260 (Fla. 1985), was

sentenced to life during the pendency of state collateral proceedings

pursuant to an agreement with the State after his co-defendant

received a life sentence in separate trial proceedings. With respect

to the override affirmed in Porter v. State, 429 So. 2d 293 (Fla.

1983), it was reversed by this Court due to judicial bias. Porter v.

State, 723 So. 2d 191 (Fla. 1998). Finally, the defendant whose

override was affirmed in Spaziano v. State, 433 So. 2d 508 (Fla.

1983), was awarded a new trial. State v. Spaziano, 692 So. 2d 174

(Fla. 1997).

2. The Court's Inconsistent Application of Tedder.

This Court has acknowledged that it was not consistently

applying Tedder during the time period when it addressed Mr. Mills'

override on direct appeal. In Cochran v. State, 547 So. 2d 928 (Fla.

1989), both the majority and dissenting justices of this Court agreed

that the Tedder standard had been inconsistently applied by the Court

in cases reviewed prior to 1986. In dissenting from the reversal of

the override death sentence in Cochran, Chief Justice Ehrlich cited

Court, and noted that a "mechanistic application" of Tedder "would

have resulted in reversals of the death sentences in [several

cases]." Cochran, 547 So. 2d at 935 (Ehrlich, C.J., dissenting in

part). Though Chief Justice Ehrlich argued that the Tedder standard

as construed today and as applied by the majority in Cochran was

wrong, he correctly noted that the shift in the standard has resulted

in an Eighth Amendment violation under Furman v. Georgia, 408 U.S.

238 (1972). Cochran, 547 So. 2d at 935. In response to the Ehrlich

dissent, the majority in Cochran wrote:

Finally, we agree with the dissent that `legal precedent

consists more in what courts do than in what they say.'

However, in expounding upon this point to prove that

Tedder has not been applied with the force suggested by

its language, the dissent draws entirely from cases

occurring in 1984 or earlier. This is not indicative of

what the present court does, as Justice Shaw noted in his

special concurrence to Grossman v. State, 525 So. 2d 833,

851 (Fla. 1988) (Shaw, J., specially concurring):

During 1984-85, we affirmed on direct appeal

trial judge overrides in eleven of fifteen

cases, seventy-three percent. By contrast,

during 1986 and 1987, we have affirmed

overrides in only two of eleven cases, less

than twenty percent. This current reversal

rate of over eighty percent is a strong

indicator to judges that they should place less

reliance on their independent weighing of

aggravation and mitigation . . .

that Tedder means precisely what it says, that

the judge must concur with the jury's life

recommendation unless `the facts suggesting a

sentence of death [are] so clear and convincing

Mills' case was pending on direct appeal, this Court issued forty

(40) opinions addressing override death sentences. Not one of these

cases is cited or addressed in this Court's opinion affirming Mr.

agreed that the override in this case was improper. On direct

appeal, Justices Overton and McDonald found the presence of

mitigating evidence in the record, and concluded that under Tedder,

the override should not be sustained. Mills, 476 So. 2d at 180

(Overton and McDonald, JJ., dissenting in part). In an appeal from

the summary denial of post-conviction relief, Justice McDonald, in

dissenting from the granting of an evidentiary hearing, again

reiterated that "counsel presented a substantial amount of mitigating

evidence and secured a jury recommendation of life imprisonment."

Mills v. Dugger, 559 So. 2d at 580 (McDonald, J., dissenting in

part). He went on to conclude, however, that "the override sentence

differ.' Tedder, 322 So. 2d at 910.

Cochran, 547 So. 2d at 933 (emphasis added).

In the words of this Court, in cases decided after 1985,

"Tedder means precisely what it says." However, at the time of Mr.

Mills' direct appeal, by this Court's own admission, Tedder did not

Court's opinion affirming the denial of Mr. Mills' motion for

postconviction relief in 1992, where the majority, faced with the

argument that Tedder had not been properly applied on direct appeal,

held that "even though the jury override might not have been

sustained today, it is the law of the case." Mills v. State, 603 So.

2d 482, 486 (Fla. 1992). This statement establishes the arbitrary

the grant of an evidentiary hearing, would also have granted habeas

relief to Mr. Mills. Id. at 579 (Barkett, J., concurring in part and

dissenting in part). In this Court's 1992 postconviction opinion,

then-Justice Barkett again dissented from the affirmance of the jury

override. Mills v. State, 603 So. 2d at 486 (Barkett, J.,

dissenting). Then-Chief Justice Shaw concurred in Justice Barkett's

dissenting opinion. Id. Justice Kogan would also reduce Mr. Mills'

have at various times expressed that Mr. Mills' sentence should be

reversed is further manifestation that this death sentence has

troubled many jurists since the jury's life recommendation was

a. Mr. Mills' Override. On August 20, 1979, a Seminole

County, Florida, jury recommended that Gregory Mills be sentenced to

life imprisonment. On April 18, 1980, the trial court overrode the

jury's recommendation. Some eight (8) months later, on December 31,

1980, the appellate briefing of Mr. Mills' case was completed by the

filing of the Reply Brief by Mr. Mills' direct appeal counsel. On

February, 1981, less than sixty (60) days later, oral argument was

conducted in this Court. Four years and six months later, on August

30, 1985, a divided Court issued its opinion affirming the conviction

and override death sentence. The five-year period between briefing

and final decision in this case, quite possibly a record for this

cannot be reconciled with any other similar case decided by the Court

since the reinstatement of the death penalty in the State of Florida.

In Mr. Mills' case, the Court engaged in one of the longest, if not

the longest, direct appeal deliberations in its history to affirm the

only jury override involving a conviction for felony-murder since the

reinstatement of the death penalty in this state. The result in Mr.

Mills' case could not be more arbitrary, capricious, and therefore

violative of the Eighth and Fourteenth Amendments.

As demonstrated by the recent decision in Keen, Mr. Mills'

consistent complaints that Tedder was not consistently applied to his

case have come to fruition. The record in this case could not be

more clear that the trial judge failed to conduct the proper analysis

under Tedder, and that the majority decision on direct appeal

similarly failed to apply a proper Tedder analysis. At the

oral pronouncement of sentence, the trial court stated as follows:

THE COURT: Gregory Mills, the Court has gone through

the aggravating and mitigating provisions as set forth in

921.141, and the Court finds then, under all but . . .

let's see, (G), that there was aggravating circumstances

under each of those except (G).

The Court differs from your attorney as to the

mitigating circumstances as I consider that you're above

the age of majority and the Court does not consider the

age of the Defendant at the time of the crime.

[The] Court finds that you're above the age of

majority. So, I do not consider your age as any

mitigating circumstances. The Court also considered the

jury's life recommendation had to be given great weight by the court:

MR. GREENE: I think as the Court is well aware that

the Jury in this case, same jury that heard the case, made

a recommendation to this Court, did recommend that Mr.

Mills be sentenced to life in prison.

I think the Court should take that into consideration

and give that recommendation great weight. I think the

Court should note that the Jury only deliberated

approximately thirty minutes after hearing the arguments

by Counsel before arriving at that recommendation of life.

I think the Court remembers that during the trial

itself, the Jury deliberated more than four hours, and I'm

asking the Court to speculate, but I think there's also

the possibility that the Jury may have made up its mind

about the sentencing recommendation that [it] was gonna

[sic] make to the Court possibly during the trial and

maybe that's an explanation for why the sentencing

recommendation was made to the Court in this case was

life imprisonment, the Court considered that in the

sentence that it decided to impose upon you.

The finding as the Court has written up an Order of

Judgment and Sentence that the aggravating circumstances

far outweigh any mitigating circumstances in that the

Court did not find any mitigating circumstances at all in

this particular case.

So, it's the Judgment and Order and Sentence of this

Court that you be electrocuted until dead in the manner

directed by the laws of the State of Florida.

(Transcript of Sentencing, April 18, 1980, at 45-46). At no time did

the Court indicate that it was required to and in fact did give

"great weight" to the jury's recommendation of life; he merely stated

I think the Court can consider the fact that twelve

citizens that sat on this case were citizens of Seminole

County, were very familiar with the case. I think their

recommendation does carry great weight.

The trial court's written sentencing order merely listed the

aggravators and mitigators that he found or rejected and concluded:

IT IS the finding of the Court after weighing

the aggravating and mitigating circumstances

that there are sufficient aggravating

circumstances as specified in 921.141 and

insufficient mitigating circumstances therein

that a sentence of death is justified.

(R. at 642) (Attachment A). The judge never discussed or made any

findings regarding whether the jury’s life recommendation could have

been reasonably supported by the record. Instead, the trial judge’s

order reflects that he thought the jury got it wrong and as a result

he inserted his own view of the facts. In fact, in the court’s four

page order, Tedder is never mentioned.

On direct appeal, Mr. Mills' appellate counsel raised a number

of challenges to the constitutionality and propriety of the override,

including an argument that "[t]he standards for overruling the jury

have not been met in the present case. There was no `clear and

convincing' reason, . . . no `compelling' reason, . . . and no

`reasonable basis' . . . for rejecting the jury's life recommendation

(Initial Brief of Appellant at 40) (citing cases). Appellate counsel

a reading of the transcript and the trial court's written

findings in support of the death sentence makes it clear

that the trial court, although recognizing that the jury

had recommended life, completely disregarded that

recommendation without stating any specific reason for

doing so, contrary to the Tedder standard.

(Id. at 46). Appellate counsel further discussed the mitigation that

was presented below and which served as a reasonable basis for the

jury's life recommendation, including the fact that the co-defendant,

Ashley, received complete immunity:

Additionally, the role of Vincent Ashley in the

perpetration of the offense is evidence in mitigation.

Ashley received complete immunity for his trial testimony

at the defendant's trial. His credibility and role in the

offense were certainly at issue. Although Ashley

testified that the defendant was with him and committed

the shooting, his testimony is extremely suspect since the

only person the victim's wife saw running from the house

was Ashley (R 6-7, 10, 11-12, 15, 29-30, 33, 39-44).

Certainly, such testimony was relevant in mitigation. See

Malloy v. State, 382 So. 2d 1190 (Fla. 1979), wherein this

Court held that the jury's action in recommending life

imprisonment for the defendant was reasonable because of

conflict in evidence as to who was the actual perpetrator

and because of the plea bargains of the defendant's

accomplices.

(Id. at 50-51).

On direct appeal, a fractured Court first vacated Mr. Mills'

aggravated battery conviction because "we do not believe it proper to

convict a person for aggravated battery and simultaneously for

homicide as a result of one shotgun blast." Mills v. State, 476 So.

2d 172, 177 (Fla. 1985). The Court also struck three (3) of the

of death to many persons" aggravating factor was struck because

"[t]he finding that Mills knowingly created a great risk of death to

many persons was, as the state conceded, erroneous." Id. at 178.

The pecuniary gain factor was struck due to improper doubling with

the felony murder aggravating factor. Id. Lastly, the Court struck

the "heinous, atrocious, or cruel" aggravator as inapplicable to the

facts of the case. Id. Despite striking the aggravators, the Court

purportedly conducted a harmless error analysis:

We conclude that the court's finding that there were no

mitigating circumstances was correct. Because there were

no mitigating circumstances, we find that the court's

erroneous finding of two statutory aggravating

circumstances was harmless and did not impair the

sentencing process.

Id. at 179. As for the override, the entirety of the Court's

analysis is as follows:

We hold that the trial judge's findings in support of the

sentence of death even without the finding of especially

heinous, atrocious, and cruel, meet the Tedder standard.

We find that the facts suggesting a sentence of death are

so clear and convincing that virtually no reasonable

person could differ. There are three valid statutory

aggravating circumstances, and the trial judge has found

that there are no valid mitigating circumstances. The

purported mitigating circumstances claimed by Mills, but

not found by the trial judge, are not sufficient to

outweigh the aggravating circumstances nor do they

establish a reasonable basis for the jury's

recommendation. We conclude that the imposition of a

sentence of death after a jury recommendation of life was

proper in this case.

Justice Overton dissented from the affirmance of the sentence,

writing "the jury recommendation of life should have been followed

for the reasons expressed by Justice McDonald in his dissent." Id.

at 180 (Overton, J., concurring in part and dissenting in part). In

dissent, Justice McDonald wrote:

I dissent only from the affirmance of the death sentence.

Were it not for the jury's recommendation, I would have

little difficulty in upholding the death sentence. Valid

aggravating circumstances existed, and the defense

established the existence of no statutory mitigating

circumstances.

The jury, however, recommended life imprisonment. In such

instances we have stated that "the facts suggesting a

sentence of death should be so clear and convincing that

virtually no reasonable person could differ." Tedder v.

State, 322 So. 2d 908, 910 (Fla. 1975). We should,

therefore, review Mills' sentence in light of Tedder.

The jury's recommendation must have been predicated on the

circumstances of this homicide and on nonstatutory

mitigating evidence. The chief testimony against Mills

came from Ashley. As previously indicated, Ashley

received immunity from prosecution for this crime and

other crimes in exchange for his testimony. Ashley said

that Mills did the killing, but Mills has always denied

this. The jury could have found the evidence sufficient

to convict but still have had doubts about whether Mills

intended to kill the victim. It could also have concluded

that Mills and Ashley were being treated so disparately

when their involvement was substantially the same that any

such doubt should be weighed in Mills' favor. Mills was

employed at the time of the crime and his employer thought

well of him. Mills had a harsh and deprived youth, but

his grandmother and sister were supportive of him. During

prior incarceration he completed studies to the extent

that he passed his G.E.D. tests.

Are these circumstances, considered collectively, adequate

imprisonment? I think so. As previously indicated,

adequate and reasonable grounds existed for the trial

judge to impose death. For the death penalty to prevail

when there is a jury recommendation of life, however, more

than a disagreement with the jury's recommendation must be

shown. "[T]he facts suggesting a sentence of death should

be so clear and convincing that virtually no reasonable

person could differ." Id. This is a difficult test, and

it has not been met in this case.

Id. at 180 (McDonald, J., concurring in part and dissenting in part).

Mills' Case.

In Keen, this Court was faced with a lower court overriding a

jury recommendation of life and purporting to conduct a proper Tedder

analysis. The Court concluded that the lower court had erred because

"the standards for weighing aggravators and mitigators in a death

recommendation case have been transposed with those applicable to

consideration of a jury recommendation of life imprisonment." Keen,

2000 WL 1424523 at *18. For example, the lower court's order had

found that "[t]he mitigating evidence is wholly insufficient to

outweigh the aggravating circumstances in support of a life

sentence." Id. at *19. It was this sentence that the Court

concluded demonstrated that "the wrong standard was ultimately

applied in consideration of the jury's life recommendation." Id. As

the Court acknowledged:

The singular focus of a Tedder inquiry is whether there is

"a reasonable basis in the record to support the jury's

recommendation of life," rather than the weighing process

Id. (citations omitted). Because the trial court applied the wrong

standard, the Court in Keen found error under Tedder:

Consequently, the focus of the analysis was not upon

finding support for the jury's recommendation, i.e.,

determining if a reasonable basis existed for the jury's

decision, but rather toward proving that the jury got it

wrong and lacked any reasonable basis to recommend life.

In other words, the trial judge disagreed with their

recommendation based on his view of the mix of aggravators

and mitigators, rather than through the prism of a Tedder

analysis. This was error, because just as a Tedder

inquiry has no place in a death recommendation case, the

reciprocal holds true when a jury life recommendation is

independently analyzed by the trial court and

independently reviewed by this Court. In other words, the

jury's life recommendation changes the analytical dynamic

and magnifies the ultimate effect of mitigation on the

defendant's sentence.

Id. at *19 (footnotes and citations omitted). As a result, the Court

reversed the override, concluding that "[w]hile any of us might or

might not have come to the same conclusion with regard to the

imposition of a death sentence based upon the evidence presented in

this case had we been jurors, that is not the legal standard by which

we must evaluate the override of the jury's recommendation." Id. at

*22 (emphasis added).

The Court's analysis in Keen simply cannot be squared with its

analysis of Mr. Mills' override on direct appeal. Mr. Mills' trial

judge engaged in precisely the same Tedder error as did the judge in

Keen. In fact, the error in Mr. Mills' case was even more egregious.

forth why the judge believed the jury's recommendation to be lacking

in a reasonable basis. Keen, 2000 WL 1424523 at *18-*19. No such

respect to this issue was the following:

IT IS the finding of the Court after weighing the

aggravating and mitigating circumstances that there are

sufficient aggravating circumstances as specified in

921.141 and insufficient mitigating circumstances therein

that a sentence of death is justified.

(R. 642). NO mention of Tedder was made. NO mention was made that

the jury's recommendation of life was entitled to great weight. NO

mention was made of why the jury's recommendation was unreasonable

consists simply of findings of aggravating and mitigating

circumstances, with no mention of Tedder. Cf Keen at *23 n.20

("Indeed, the second page of the sentencing order contains details of

the aggravators, the mitigators, and supporting evidence as in a

death recommendation case. It was not until the twelfth page of the

sentencing order that Tedder is mentioned, which is the appropriate

standard that should have guided the inquiry from the outset. In

short, the analysis was concluded backwards"). From the face of the

order in Mr. Mills' case, one would think that the jury had

recommended death as opposed to life, since the trial court engaged

in the weighing process that, as the Court made clear in Keen, does

This Court's analysis of Mr. Mills' override on direct appeal

is also fatally flawed under Keen and Tedder. As the Court noted in

Keen, the Court's focus of appellate review in override cases is a

"narrow" one and focuses solely on whether there is a reasonable

basis in the record on which the jury could have relied in

recommending life. Keen at *18. In Mr. Mills' direct appeal, the

majority decision did the exact opposite, also addressing the issue

as if it were a death recommendation. The Court sustained the

override because

[t]here are three valid statutory aggravating

circumstances, and the trial judge has found that there

are no mitigating circumstances. The purported mitigating

circumstances claimed by Mills, but not found by the trial

judge, are not sufficient to outweigh the aggravating

circumstances nor do they establish a reasonable basis for

the jury's recommendation.

Mills, 476 So. 2d at 179. This is plainly incorrect under Keen,

which explicitly held that under Tedder, "[t]he singular focus of a

Tedder inquiry is whether there is `a reasonable basis in the record

to support the jury's recommendation of life, rather than the

weighing process which a judge conducts after a death

recommendation." Keen at *19. The mere existence of aggravators

does not, under Tedder, exclude the possibility of a reversal in an

override: "[R]eversal under Tedder is in no way prevented even

assuming the presence of several valid aggravators. Indeed, that has

As Justice McDonald's dissent in Mills set forth, the jury

recommendation could have reasonably rested on the disparate

treatment between Mr. Mills and Ashley "when their involvement was

substantially the same." Mills, 476 So. 2d at 180 (McDonald, J.,

dissenting). However, the majority determined that this fact, along

with the other "purported" nonstatutory mitigation adduced by Mr.

Mills, were "not found by the trial judge" and did not establish a

reasonable basis. But as the Court noted in Keen, whether members of

the Court believed that Ashley was equally culpable or not "is not

the legal standard by which we must evaluate the override of the

jury's life recommendation." Keen at *22. As the Court wrote:

On the issue of disparate treatment, a fundamental

distinction exists between a defendant who receives an

advisory sentence of death from a jury as opposed to one

who receives an advisory sentence of life. In the former,

the defendant is left to argue that the jury got it wrong

and that the disparate treatment of a codefendant or

coperpetrator should have mitigated the offense. In the

phases of the capital case before them.

So. 2d 861, 863 (Fla. 1989) (override reversed because "the testimony

could have raised in the jurors' minds the question of who actually

stabbed the victim"); Brookings v. State, 495 So. 2d 135 (Fla. 1986)

(override reversed because codefendant walking away "totally

free...could reasonably be considered by the jury"); Fuente v. State,

549 So. 2d 652 (Fla. 1989) (override was reversed because "the jury

in this case could have reasonably based its recommendation on the

fact that [the codefendants] would likely not be prosecuted for their

participation in the murder").

It could not be clearer that Keen and Mills are virtually

indistinguishable except for grossly different outcomes. A proper

application of Tedder to Mr. Keen's case warranted relief. An

erroneous application of Tedder to Mr. Mills' case warranted an

affirmance. This arbitrariness must be corrected at this time.

The recent decision in Fiore v. White, 121 S.Ct. 712 (2001), is

instructive on whether a court can arbitrarily apply standards to

similarly-situated defendants. In Fiore, two defendants, Fiore and

Scarpone, were both convicted under a Pennsylvania law of operating a

hazardous waste facility without a permit. Id. at 713. Pennsylvania

conceded that Fiore had a permit, but argued that Fiore had deviated

so dramatically from the permit's terms that he nevertheless violated

Pennsylvania Supreme Court refused to review the case. Id. In the

meantime, after Fiore's conviction was final by the Pennsylvania

Supreme Court's failure to review the case, the Pennsylvania Supreme

Court agreed to review Scarpone's case and awarded him with a new

trial "on the ground that the statute meant what it said." Id.

Fiore then sought and obtained federal habeas relief; the Third

Circuit Court of Appeals reversed the granting of relief, however,

holding that "state courts are under no [federal] constitutional

obligation to apply their decisions retroactively." Id. at 713-14.

After granting certiorari, the United States Supreme Court

certified a question to the Pennsylvania Supreme Court, asking

whether the interpretation of law it applied to Scarpone's case was

the correct interpretation of law at the time of Fiore's conviction.

Id. at 714. In response, the Pennsylvania Supreme Court wrote that

the decision in Scarpone's case did not announce a new rule of law,

but rather "clarified" the plain meaning of the law which also

applied at the time of Fiore's conviction. Id. The Supreme Court

wrote that "the question is simply whether Pennsylvania can,

consistently with the Federal Due Process Clause, convict Fiore for

conduct that its criminal statute, as properly interpreted, does not

prohibit." Id. The Court resolved the question in the negative,

holding that "Fiore's conviction fails to satisfy the Federal

Mr. Mills does not assert that Tedder is new law; obviously it

has been in existence for some time. Rather, the proper application

of Tedder has vacillated over time, culminating in an interpretation

set forth in Keen which is irrefutably at odds with the manner in

which the Court analyzed Mr. Mills' override on direct appeal (as

Justice McDonald's dissent set forth). Failure to apply this

interpretation to Mr. Mills' case would be the epitome of the

arbitrary application of the death penalty. Cf. Engle v. Florida,

485 U.S. 924, 928 (1988) (Marshall and Brennan, JJ., dissenting from

the denial of certiorari) (voicing concern over this Court's

"haphazard application of the Tedder standard in cases in which an

accomplice's lesser role may have influenced the jury's

recommendation of life imprisonment," a constitutional infirmity

which left the justices "convince[d] [] that the Florida sentencing

scheme is being applied in a manner inconsistent with the

requirements of due process"). See also id. at 925 (this Court's

"inconsistent application of the Tedder standard in felony-murder

cases has led to the arbitrary imposition of the death penalty").

In light of Keen and Fiore, the Court should now lift the "law

of the case" doctrine which it previously erected. Mills v. State,

603 So. 2d 482, 486 (Fla. 1992) ("even though the jury override might

not have been sustained today, it is the law of the case"). Under

depart from a prior holding if convinced that it is clearly erroneous

and would work a manifest injustice." Arizona v. California, 103 S.

Ct. 1382, 1391 n.8 (1983). Florida courts have lifted the "law of

the case" and corrected errors made in prior dispositions of issues

where justice would be subverted if the court did not do so. See

Massie v. University of Florida, 570 So. 2d 963, 974 (Fla. App. 1st

DCA 1990); Brown v. Champeau, 537 So. 2d 1120, 1121 (Fla. 5th DCA

1989); Morales v. State, 580 So. 2d 788 (Fla. 3d DCA 1991).

This Court's jurisdiction over an appeal necessarily includes

the "authority to change the law of the case previously set forth."

Jones v. State, 559 So. 2d 204, 206 (Fla. 1990). See also Brunner

Enterprises v. Department of Revenue, 452 So. 2d 550 (Fla. 1984) ("We

are the only court that has the power to change the law of the case

established by this Court"). In Preston v. State, 444 So. 2d 939,

942 (Fla. 1984), a capital case, the Court reaffirmed that "an

appellate court does have the power to reconsider and correct

erroneous rulings notwithstanding that such rulings have become the

law of the case." The Court lifted application of the "law of the

case" because "[t]he interest of justice, substantive due process

requirements and Florida's constitutional and statutory scheme of

death penalty review jurisdiction support our decision to review this

issue." Id. Accord Porter v. State, 723 So. 2d 191 (Fla. 1998).

the "law of the case" doctrine in this case. Mr. Mills'

unconstitutional execution would classify as a manifest injustice

sufficient to apply an exception to the "law of the case." But for

the application of this admittedly "amorphous" doctrine, his override

would be reversed. Compare Preston, 442 So. 2d at 942 ("law of the

case" lifted because "[t]he interest of justice, substantive due

process requirements and Florida's constitutional and statutory

scheme of death penalty review jurisdiction support our decision to

review this issue"). The interest of justice and Florida's death

penalty review were sufficient concerns in Preston and Porter to lift

CONCLUSION AND PRAYER FOR RELIEF

In light of the foregoing discussion, Mr. Mills requests:

1. That Respondent be ordered to show cause why this petition

should not be granted;

2. That Mr. Mills be permitted to file a Reply to the

Respondent's Response;

3. That oral argument be scheduled on this petition;

4. That Mr. Mills's override death sentence be vacated;

5. That any other relief that is just and proper issue from

the Court.

I HEREBY CERTIFY that a true copy of the foregoing petition has

been furnished by United States Mail, first class postage prepaid, to

all counsel of record on February 12, 2001.

TODD G. SCHER

Florida Bar No. 0899641

Litigation Director

CCRC South

101 NE 3d Avenue, Suite 400

Ft. Lauderdale, Florida 33301

(954) 713-1284

Attorney for Defendant

Copies furnished to:

Kenneth Nunnelley, Asst. Attorney General

Office of the Attorney General

444 Seabreeze Boulevard, 5th Floor