Academic journal article Harvard Law Review

Criminal Procedure - Retroactivity - Florida Supreme Court Denies Retroactive Application of Hurst V. Florida to Pre-Ring Cases

Academic journal article Harvard Law Review

Criminal Procedure - Retroactivity - Florida Supreme Court Denies Retroactive Application of Hurst V. Florida to Pre-Ring Cases

Article excerpt


The balance between finality and fairness in retroactive application of changes in the law is a "thorny" (1) issue that has particular significance in the area of capital punishment, where retroactivity is not a question "of guilt or innocence but, rather, of life or death." (2) To address this issue, the U.S. Supreme Court has articulated, and many states have adopted, the Teague v. Lane (3) retroactivity standard. But states may adopt retroactivity standards that are "more generous" than the federal test, (4) and Florida has retained its Witt v. State (5) test on this basis. Recently, in Asay v. State, (6) the Florida Supreme Court (Court) applied Witt and held that the U.S. Supreme Court's ruling that Florida must commit capital-sentencing factfinding to a jury (7) does not apply retroactively to a certain class of cases. (8) However, the Witt test is "malleable," "nebulous," (9) and hindered by its indeterminacy, belying its characterization as supporting "expansive retroactivity." (10) Therefore, Florida should consider aligning with federal practice and adopting the more determinate Teague retroactivity standard.

On July 17, 1989, Mark Asay, acting with racial motivation, shot and killed two men. (11) A jury found Asay guilty of two counts of first-degree murder, (12) and the penalty-phase jury voted nine to three to recommend death. (13) The trial court adhered to the jury's recommendations and sentenced Asay to death for each conviction. (14) Thereafter, Asay's case wound through the Florida and federal court systems for nearly thirty years. (15)

The current case arises from Asay's second successive postconviction motion, filed on January 27, 2016. (16) The Florida circuit court summarily denied Asay's claims and his motion for a stay of execution, and Asay appealed to the Court, stating four claims (17) and filing a petition for a writ of habeas corpus. (18)

The Court affirmed and denied Asay's habeas petition. (19) In a per curiam opinion, the Court held that Hurst v. Florida (20) has no retroactive application to cases that were final when the U.S. Supreme Court decided Ring v. Arizona (21) in 2002. (22) In reaching this conclusion, the Court first addressed its decision in Johnson v. State, (23) which held that Ring, the case from which Hurst derived, does not apply retroactively. (24) Finding the Johnson Court to have improperly relied on reasoning derivative of the Teague test, which departs entirely from the criteria in Florida's Witt test, the Court determined that Johnson's retroactivity analysis is no longer binding and that it must analyze the retroactivity of Hurst without recourse to that precedent. (25) Under Witt, which established an intricate analytical framework that attempts to balance the needs for finality and individualized justice, (26) the Court does not retroactively apply a change in the law "unless the change: (a) emanates from [the] Court or the United States Supreme Court, (b) is constitutional in nature, and (c) constitutes a development of fundamental significance." (27) The third prong can be satisfied in one of two ways (28): a change can either remove the state's regulatory power over certain conduct or ability to inflict certain penalties, or, alternatively, meet a magnitude threshold under the test established by the U.S. Supreme Court in Stovall v. Denno (29) and Linkletter v. Walker. (30) The Stovall/Linkletter test, in turn, incorporates three factors: "(a) the purpose to be served by the new rule; (b) the extent of reliance on the old rule; and (c) the effect on the administration of justice of a retroactive application of the new rule." (31)

The Court quickly determined that Hurst satisfies the first two requirements under Witt. (32) Turning then to the Stovall/Linkletter test to evaluate Witt's third prong, the Court first addressed the purpose to be served by the new rule, finding that protecting the right to a jury weighed in favor of retroactivity. …

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