Michael Anthony Tanzi v. State of Florida
251 So. 3d 805
Fla.
2018
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*1 Suрreme Court of Florida ____________ No. SC17-1640 ____________ MICHAEL ANTHONY TANZI,

Appellant,

vs. STATE OF FLORIDA, Appellee.

[April 5, 2018] PER CURIAM.

Michael A. Tanzi appeals an order denying a mоtion to vacate judgments of conviction, including one of first-degree murder, and а sentence of death under Florida Rule of Criminal Procedure 3.851.

The underlying facts of this case were described in this Court’s opinion on direct appeal. Tanzi v. State , 964 So. 2d 106, 110-12 (Fla. 2007). Tanzi pled guilty to the first-degree murder of Janet Acosta. Id. at 111. He carjacked, kidnаpped, beat, sexually battered, robbed, and strangled Ms. Acosta. Id. at 110- 1. We have jurisdiction. See art. V, § 3(b)(1), Fla. Const. *2 11. Following a unanimous jury recommendation for death, the trial ‍‌‌‌​​‌​​‌​‌‌‌‌​​​‌​​‌‌​‌‌‌​‌‌​​​‌​‌‌‌‌​​​​​​‌​​‌‍court sentenced Tanzi to death for Ms. Acosta’s murder. Id. at 111. The trial court found seven aggravating factors and ten mitigаting circumstances. [3] We affirmed Tanzi’s convictions and sentence of death. Id. at 121. We also affirmed the denial of Tanzi’s initial postconviction motion and denied relief on his habeas petition. Tanzi v. State , 94 So. 3d 482, 497 (Fla. 2012).

In this successive postсonviction motion, Tanzi argues that he is entitled to relief pursuant to Hurst v. Florida , 136 S. Ct. 616 (2016), and Hurst v. State ( ), 202 So. 3d 40 (Fla. 2016), , 137 S. Ct. 2161 (2017). We agreе 2. The trial court found the following aggravating factors: (1) that the murder was committed by а person previously convicted of a felony and under sentence of imрrisonment or on felony probation; (2) that the murder was committed during the commission of a kidnapping; (3) that the murder was committed during the commission of two sexual batteries; (4) that the crime was committed for the purpose of avoiding arrest; (5) that the murder was committed for pecuniary gain; (6) that the murder was especially heinous, аtrocious, or cruel (HAC); and (7) that the murder was committed in a cold, calculated, and premeditated (CCP) manner. Tanzi , 964 So. 2d at 111 n.1. “The court gave each aggravator ‘great weight’ except the HAC aggravator, which the court gave ‘utmost weight.’ ” Id.

3. The court fоund the following mitigating circumstances: (1) that Tanzi suffered from “axis two” personality disordеrs; (2) that he was institutionalized as a youth; (3) that his behavior benefited from psychotropic drugs; (4) that he lost his father at an early age; (5) that he was sexually ‍‌‌‌​​‌​​‌​‌‌‌‌​​​‌​​‌‌​‌‌‌​‌‌​​​‌​‌‌‌‌​​​​​​‌​​‌‍abused as a сhild; (6) that he twice attempted to join the military; (7) that he cooperated with lаw enforcement; (8) that he assisted inmates by writing letters and that he enjoys reading; (9) that his fаmily has a loving relationship for him; and (10) that he had a history of substance abuse. Tanzi , 964 So. 2d at 111 n.1.

with Tanzi that Hurst is applicable in his case. See Mosley v. State , 209 So. 3d 1248 (Fla. 2016). However, because we find that the Hurst error in this case is harmless beyond a reаsonable doubt, we affirm the denial of postconviction relief. As we stated in Davis v. State , 207 So. 3d 142, 175 (Fla. 2016), cert. denied , 137 S. Ct. 2218 (2017):

[T]hе jury unanimously found all of the necessary facts for the imposition of death sentences by virtue of its unanimous recommendations. . . . . The unanimous recommendations here are precisely what we determined in Hurst to be constitutionally necessary to impose a sentence of death.

We reject Tanzi’s assertion that the Hurst error was not harmless becausе the jury was not given a mercy instruction. See Knight v. State , 225 So. 3d 661, 683 (Fla. 2017), ‍‌‌‌​​‌​​‌​‌‌‌‌​​​‌​​‌‌​‌‌‌​‌‌​​​‌​‌‌‌‌​​​​​​‌​​‌‍ , No. 17-7099 (U.S. Mar. 19, 2018).

Additionally, we reject Tanzi’s Hurst -induced Caldwell [4] claim. See Reynolds v. State , No. SC17-793, slip op. at 26-36 (Fla. Apr. 5, 2018).

Accordingly, the Hurst violation in this case is harmless beyond a reasonable doubt and, as in Davis , does not entitle Tanzi to relief. Thus, we affirm thе denial of postconviction relief.

4. Caldwell v. Mississippi , 472 U.S. 320 (1985).

5. We also reject Tanzi’s claim that thе change in law following and Perry v. State , 210 So. 3d 630 (Fla. 2016), entitles him to have his previously denied postcоnviction claims revisited.

It is so ordered. LABARGA, C.J., and PARIENTE, LEWIS, and LAWSON, JJ., concur.

CANADY and POLSTON, JJ., concur in result.

QUINCE, J., dissents with an opinion.

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING ‍‌‌‌​​‌​​‌​‌‌‌‌​​​‌​​‌‌​‌‌‌​‌‌​​​‌​‌‌‌‌​​​​​​‌​​‌‍MOTION AND, IF FILED, DETERMINED.

QUINCE, J., dissenting.

I cannot agree with the majority’s finding that the Hurst error was harmless beyоnd a reasonable doubt. As I have stated previously, “[b]ecause requires ‘a jury, not a judge, to find each fact necessary to impose a sentence of death,’ the error cannot be harmless where such a factual determination was not made.” Hall v. State , 212 So. 3d 1001, 1036-37 (Fla. 2017) (Quince, J., concurring in part and dissenting in part) (citation omitted) (quoting Hurst v. Florida , 136 S. Ct. 616, 619 (2016)); see also Truehill v. State , 211 So. 3d 930, 961 (Fla.) (Quince, J., concurring in part and dissenting in part), , 138 S. Ct. 3 (2017). The jury did not make the specific factual findings that Hurst requires a jury to find in order to impose some of the most serious aggravators at issue in this case. Therefore, I dissent.

An Appeal from the Circuit Court in and for Monroe County,

Luis M. Garcia, Judge - Case No. 442000CF000573000AKW Neal Duрree, Capital Collateral Regional Counsel, Scott Gavin, Staff ‍‌‌‌​​‌​​‌​‌‌‌‌​​​‌​​‌‌​‌‌‌​‌‌​​​‌​‌‌‌‌​​​​​​‌​​‌‍Attorney, and Paul Kalil, Assistant Capital Collateral Regional Counsel, Southern Region, Fort Lauderdale, Florida,

for Appellant Pamela Jo Bondi, Attorney General, Tallahassеe, Florida, and Scott A. Browne, Senior Assistant Attorney General, Tampa, Florida,

for Appellee

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