Mark James Asay v. State of Florida, SC16-102 Mark James Asay v. Julie L. Jones, etc. & SC16-628 Mark James Asay v. Julie L. Jones, etc.
210 So. 3d 1
| Fla. | 2016Background
- In 1987 Mark James Asay murdered two men; a jury convicted him and recommended death by a 9–3 vote; the trial court imposed death sentences.
- Asay pursued direct appeal and multiple rounds of state and federal postconviction and habeas litigation; his convictions and sentences were repeatedly upheld; a death warrant issued in Jan. 2016.
- In Jan. 2016 Asay filed a second successive postconviction motion raising (1) newly discovered ballistics evidence, (2) lack of registry counsel at the time the warrant issued, (3) entitlement to relief under Hurst v. Florida (jury factfinding/unanimity), and (4) Brady suppression of public records. The circuit court summarily denied relief and a stay.
- The Florida Supreme Court reviewed whether Hurst applies retroactively to defendants whose sentences were final before Ring v. Arizona; it also reviewed denial of evidentiary hearings on newly discovered/Brady/Strickland claims and asserted procedural/due-process errors (extra-record material, ex parte contact, lack of registry counsel).
- The Court held Hurst does not apply retroactively to cases final before Ring, affirmed the denial of an evidentiary hearing (new evidence, Brady/Strickland claims), rejected due-process/ex parte and extra-record claims, and denied relief based on lack of registry counsel.
Issues
| Issue | Asay's Argument | State's Argument | Held |
|---|---|---|---|
| Retroactivity of Hurst v. Florida | Hurst requires jury findings/unanimity and should apply retroactively to vacate his death sentences. | Hurst derives from Ring and should not be applied retroactively to cases final before Ring; applying it widely would unduly disrupt administration of justice. | Hurst does not apply retroactively to cases final before Ring; Asay denied relief. |
| Newly discovered ballistics evidence | New ballistics/expert affidavit undermines trial forensic evidence and warrants an evidentiary hearing. | The affidavit reinterprets existing literature/reports and does not constitute newly discovered, case‑specific evidence. | Summary denial affirmed: Tobin affidavit is not newly discovered evidence; no hearing required. |
| Brady / Strickland claims (suppression and ineffective assistance) | State suppressed exculpatory/impeachment materials (alternative: counsel ineffective for not using them), warranting relief / hearing. | Evidence is either not material, previously litigated, or counsel performance not shown deficient/prejudicial. | Summary denial affirmed: some claims procedurally barred; remaining Brady claims not materially undermining; Strickland allegations legally insufficient. |
| Due process/ex parte / lost counsel/records | Court considered extra-record material, held ex parte hearing, and Asay lacked registry counsel for years — violating due process, equal protection, and Spalding. | Defense had notice/opportunity; ex parte contact was non‑prejudicial; defendants have no constitutional right to effective collateral counsel; records largely recreated. | Denied: no fundamental due‑process violation shown, no prejudice from ex parte contact, and no entitlement to effective collateral counsel or relief from lost records. |
Key Cases Cited
- Hurst v. Florida, 136 S. Ct. 616 (U.S. 2016) (holding Florida’s sentencing scheme unconstitutional under Sixth Amendment jury‑factfinding principles)
- Ring v. Arizona, 536 U.S. 584 (2002) (holding a judge may not find aggravating circumstances that increase maximum punishment; jury must decide such facts)
- Apprendi v. New Jersey, 530 U.S. 466 (2000) (any fact that increases penalty beyond statutory maximum is an element for jury determination)
- Hurst v. State, 202 So.3d 40 (Fla. 2016) (Florida Supreme Court interpreting Hurst v. Florida to require unanimous jury findings and unanimous death recommendation)
- Johnson v. State, 904 So.2d 400 (Fla. 2005) (held Ring not retroactive under Florida’s Witt analysis)
- Witt v. State, 387 So.2d 922 (Fla. 1980) (Florida test for retroactivity of new constitutional rules)
- Schriro v. Summerlin, 542 U.S. 348 (2004) (Teague framework discussion distinguishing substantive from procedural rules)
- Perry v. State, 210 So.3d 630 (Fla. 2016) (addressing Florida law implementing jury unanimity and the constitutionality of 2016 legislative changes)