Hurst Error Analysis

Despite the fact that this Court has found the Hurst error harmless in some cases without evidentiary development, this Court has never done so when a defendant has proffered evidence and been denied a hearing. Appellant requested a hearing based on a substantial evidentiary proffer showing the extent of the Hurst error in his case. This proffer cast doubt on what the outcome of his penalty phase would have been without the constitutional error. In light of Appellant’s proffer, the circuit court should have held an evidentiary hearing on harmless error. This Court should remand for such a hearing.
A defendant is generally entitled to an evidentiary hearing. See Freeman v. State, 761 So. 2d 1055, 1061 (Fla. 2000). A circuit court can only
overcome a defendant’s presumption of entitlement to an evidentiary hearing if the motion is legally insufficient or the alleged facts and claims are conclusively refuted by the record. Ventura v. State, 2 So. 3d 194, 197–98 (Fla. 2009). A circuit court’s decision to grant an evidentiary hearing on a 3.851 motion is tantamount to a pure question of law, and thus subject to de novo review. Long v. State, 183 So.3d 342, 344 (Fla. 2016). When reviewing the record, this Court is not permitted to look beyond the filings submitted before the circuit court and all allegations made by the defendant must be accepted as true unless they are “conclusively refuted by the record.” Ventura, 2 So. 3d at 197–98.
This Court has clearly demonstrated that the effect of an unconstitutional death penalty statute on defense counsel must be considered as part of a harmless error analysis.
This Court did exactly that after the United States Supreme Court held that a jury must be allowed to consider nonstatutory mitigating circumstances in Hitchcock v. Dugger, 481 U.S. 393 (1987). In the wake of that decision, the State made essentially the same argument they are today: there was a Hitchcock violation, but the error was harmless. This Court rejected that line of argument because it refused to be bound by the face of the record. Instead, this Court permitted defendants who proffered evidence of the extent of the harm of the constitutional error to develop that evidence at a
hearing.
There are several examples.
In Meeks v. Dugger, 576 So. 2d 713, 716 (Fla. 1991), the petitioner, through proffered evidence, was able to demonstrate exactly how Florida’s unconstitutional pre-Hitchcock capital scheme effected his penalty-phase counsel. This evidence was “sufficient to negate the conclusion that the Hitchcock error was harmless” and this Court remanded his case because “the merits of [Meeks’] claims can only be determined by an evidentiary hearing.” Id. In Hall v. State, 541 So. 2d 1125, 1128 (Fla. 1989), this Court granted relief on evidence preferred outside the original record concerning the effect of the constitutional error on defense counsel, despite the fact that this Court considered the error harmless on the basis of the original record. Appellant is simply seeking the exact same right that this Court has always provided inmates- the ability to develop a record demonstrating the impact of an unconstitutional statute on his trial
counsel.
This Court has made clear that Hurst claims required individualized harmless error review, and that the burden is on the State to prove that the error did not impact the sentence. Hurst, 202 So. 3d at. 67-68. This burden is “extremely heavy” and it will be “rare” that the State can meet it. King v. State, 211 So. 3d 866, 890 (Fla. 2017).
Under this Court’s precedent, Appellant is entitled to an evidentiary hearing on harmless error, because he proffered evidence demonstrating the impact of the harm of the Hurst error on his case in the circuit court. At the very least, the circuit court was required to address this proffer and explain whether an evidentiary hearing was required.