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Orlando Criminal Defense Lawyer > Blog > Murder Manslaughter > Understanding Florida’s New Capital Sentencing Rules

Understanding Florida’s New Capital Sentencing Rules


Florida is one of 27 U.S. states that continue to impose capital punishment–i.e., the death penalty–for certain crimes. Until recently, a jury in a capital case had to be unanimous in recommending a death sentence. But the Florida legislature recently amended that rule, which has led to confusion over what standard applies to pending capital cases.

Will the New “8-4” Rule Apply Retroactively?

In 2016, the Florida Supreme Court held that it was unconstitutional for a jury to impose a death sentence with anything less than a unanimous vote. Before 2016, Florida law allowed a jury to impose a death sentence by unanimous vote (7 to 5). After the Supreme Court’s ruling, however, the Florida legislature amended the state’s capital punishment laws to require a unanimous vote. But then in 2020, the state Supreme Court backed away from its earlier ruling. In a new decision, the Court held that even if a jury did not unanimously recommend a death sentence, the judge could still impose one so long as the jury unanimously found the “existence of a statutory aggravating circumstance beyond a reasonable doubt.”

Basically, when a jury convicts someone of a capital felony in Florida, the court then conducts a separate proceeding to decide if the sentence is death or life imprisonment. The jury determines if there is at least one “aggravating factor” supporting a death sentence under the law. For example, murdering an on-duty law enforcement officer is an aggravating factor.

Under the 2017 law, if the jury unanimously agreed there was an aggravating factor, the next step was to decide whether to recommend a death sentence. The jury also had to be unanimous on this point. If any juror voted against death, then the jury’s recommendation was automatically life imprisonment.

In light of the Supreme Court’s 2020 decision, however, this year the legislature decided to amend the statute again to require the vote of only 8 out of 12 jurors to recommend a death sentence. Again, the jury must still be unanimous as to the existence of the aggravating factor. But they no longer need to be unanimous as to whether to impose a death sentence.

The Tampa Bay Times recently noted that there were about five dozen capital cases scheduled for resentencing before the new law took effect. This has led to confusion over whether the new 8-4 threshold should apply retroactively. At least one Florida appellate court has said that it does. In September 2023, the Florida Fifth District Court of Appeal held in State v. Victorino that two men convicted of multiple murders that took place in 2004 could be sentenced under the 8-4 rule. While states cannot impose retroactive or ex post facto laws, here the Fifth District said the new rule was simply a “procedural change” that did not substantively affect the defendants’ rights.

This particular decision is unlikely to be the final word on the subject. There are a number of other death penalty appeals pending in Florida. And the Florida Supreme Court will almost certainly have to weigh-in on this issue once again.

Contact an Orlando Criminal Defense Attorney Today

If you are facing a potential capital charge in Florida, you need to seek out representation from an experienced Orlando murder and manslaughter lawyer. Contact the Joshi Law Firm, PA, today to schedule a free consultation.



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