Guerry Wayne Hertz v. Julie L. Jones, etc., 218 So. 3d 428

In July 1997 Hertz and two codefendants armed and bound two victims, stole property, shot both victims in the head, and set the house on fire; both victims died.
Physical and forensic evidence tied Hertz and codefendants to the scene and stolen vehicles; one codefendant testified after pleading to life.
Hertz was convicted of two counts of first-degree murder and related felonies; a jury recommended death 10–2 and the trial court imposed death sentences.
On direct appeal the convictions and death sentences were affirmed; certiorari to the U.S. Supreme Court was denied in 2002.
Hertz filed a habeas petition asserting his death sentence violated Hurst v. State because the jury’s critical sentencing findings were not unanimous.
The Florida Supreme Court considered Hurst’s retroactivity and whether any nonunanimous findings were harmless beyond a reasonable doubt.

Issue	Hertz's Argument	State's Argument	Held
Whether Hurst error occurred because the jury did not unanimously find the facts necessary for death	Jury recommendation 10–2 is insufficient under Hurst; death requires unanimous jury findings	The existing unanimous findings (some statutory aggravators) cure error or any error was harmless	Court: Hurst error occurred; 10–2 recommendation violates Hurst and cannot be presumed corrected
Whether Hurst applies retroactively to Hertz	Hurst applies because his conviction became final after Ring (June 24, 2002) per Mosley	State: (implicit) Hurst may not apply or should be limited	Court: Hurst applies retroactively to Hertz under Mosley; his conviction was final June 28, 2002
Whether any nonunanimous aggravator findings were harmless beyond a reasonable doubt	Any nonunanimous aggravators may have been outcome-determinative; harmlessness not shown	State argued some aggravators were necessarily unanimous or sufficient to support death	Court: Harmlessness not shown; cannot determine unanimity for critical aggravator sufficiency, so error not harmless
Remedy required	Vacate death sentence and remand for new penalty phase	Uphold sentence or limit relief	Court: Grant habeas, vacate death sentence, remand for new penalty-phase proceeding consistent with Hurst

Hurst v. State, 202 So. 3d 40 (Fla. 2016) (requires unanimous jury findings of facts necessary to impose death)
Mosley v. State, 209 So. 3d 1248 (Fla. 2016) (Hurst retroactivity for defendants whose convictions became final after Ring)
Ring v. Arizona, 536 U.S. 584 (2002) (held that a jury, not a judge, must find aggravating factors necessary for death sentence)
Hertz v. State, 803 So. 2d 629 (Fla. 2001) (direct appeal affirming convictions and death sentences)