TALLAHASSEE — Nine months after all Florida death penalty cases were halted, the Florida Supreme Court issued a decision Oct. 14 declaring the state’s method for handing down the ultimate punishment as unconstitutional.

“Everybody is in a state of uncertainty with the death penalty,” said State Attorney Glenn Hess.

Florida’s capital punishment laws have undergone major revision since the U.S. Supreme Court ruled in January that Florida was in violation of the Sixth and Eighth Amendments.

 “Upon review, the Supreme Court reversed our decision in Hurst v. State and held, for the first time, that Florida’s capital sentencing scheme was unconstitutional to the extent it failed to require the jury, rather than the judge, to find the facts necessary to impose the death sentence – the jury’s advisory recommendation for death was not enough,” the Court said Friday.

The last execution in Florida was of serial killer Oscar Ray Bolin, Jr. Bolin received the lethal injection Jan. 7 this year after 23 years on death row and just five days before a federal ruling put the brakes on 386 death penalty cases in the wake of discrepancies in the case of Timothy Lee Hurst.

Hurst was convicted of the 1998 murder of his coworker, Cynthia Harrison, at a Popeye’s Restaurant in Pensacola and sentenced to death by a 7-to-5 jury vote in 2000. Hurst filed numerous appeals, and the sentence eventually overturned when it was revealed his jury never learned that Hurst had a low IQ and possible brain damage from fetal alcohol syndrome. Hurst’s case helped spur the challenge of Florida’s death proceedings. He was granted a new penalty phase that will follow a new law now requiring a unanimous jury decision for death.

Florida is one of three states, along with Alabama and Delaware, allowing the judge a final decision on death after a majority vote by a jury. Under the new ruling, a unanimous jury must recommend death for it to be applied, but a judge may still override the vote and give a life sentence.

“Over 60 percent of the people walking around support the death penalty; that’s a pretty strong level of support,” said Hess, adding that over time the way of thinking in how the constitution applies has changed, shifting judiciaries and legislators away from the death penalty. 

Hess drafted an amendment passed in March requiring 10 jury votes and at least one aggravating factor in potential death cases, but the revision was not enough. Hess stands by the amendment, saying the 10-to-2 vote would make a stronger argument for death the court was after.

“Now what we’re going to have is a very problematic application of the death penalty,” said Hess.

Hess said it doesn’t make for the most logical outcome for one juror to be able to veto all of what prosecutors, a judge and the rest of the jury has looked at and agreed death would be a proportionately just sentence. Despite the significant change, Florida judges have not yet received direction on how the revised law may retroactively apply to death row inmates sentenced under the old procedure.

To date, a dozen inmates prosecuted in the 14th Judicial Circuit have received the death penalty, but none have been executed. Ten were tried in Bay County.

Washington County saw its first capital punishment case with the conviction of 26-year-old Zachary Taylor Wood for the murder of retired game warden James “Coon” Shores. Wood’s co-conspirator, Dillon Scott Rafsky, is set to begin trial Dec. 5. 

Holmes County’s first death penalty case came with the 2012 conviction of Johnny Calhoun, 39, who received a 9-to-3 jury vote in favor of death for the kidnapping and murder of Mia Brown. The next case to possibly face the impact of the new ruling will be Joshua Brandyn Gaskey, who is charged with two counts of murder for the robbing and shooting of Glen and Jackie Brooks in their Ponce de Leon home in April last year. Gaskey’s trial is scheduled to begin Oct. 24.

Hess said trends in how liberal or conservative juries vote differs geographically around the state or can be unique from one case to the next. For instance, a Holmes County jury sentenced Calhoun to die with a 9-to-3 vote for kidnapping and burning alive his victim, while Wood met a unanimous vote for the death penalty in Washington County, even though the investigation found he did not fire the fatal shot at Shores.

The story of how Florida’s death penalty may evolve hinges largely on the presidential election next month and the next justice installed on the U.S. Supreme Court.

“As a practical matter, if Florida does away with the death penalty, I would not want to be a prison guard under any set of circumstances because someone who is doing life has no deterrent to kill a guard,” said Hess. “We need to protect our prison guards from the dangerous people they’re with day in and day out.”

Although Hess doesn’t agree with the state’s decision last week, his district will work with the new process.

“No matter what they say the rules of the game are, the States Attorney’s Office will play fair by the rules as they are given to us,” said Hess.