Defense in Deltona Xbox mass murder asks for entire appeals court to review ruling
Attorneys for two men convicted in the Deltona Xbox mass murder filed a motion Sunday asking the entire 5th District Court of Appeal to review a split decision by one of its three-judge panels that allows prosecutors to use the state’s new non-unanimous death recommendation law.
The three-judge panel granted on Thursday the state’s request to use the new law which only requires eight jurors to recommend death in order for a judge to impose the death penalty. The previous law required a unanimous jury recommendation.
In a motion for rehearing en banc, which means all the judges on the 5th DCA, attorneys for Jerone Hunter, 35, and Troy Victorino, 46, argue that the case is of “exceptional importance.”
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The motion signed by defense attorney Allison Miller, who represents Hunter, notes that an opinion has not yet been issued.
“Without knowing the exact reasoning of the two judges behind this decision, it is nearly impossible to explain why the two were wrong,” the motion states.
Brian Lambert, the chief judge of the 5th DCA, and Judge Harvey L. Jay granted the petition from the state and prosecutors to proceed under the state's new sentencing law; Judge John M. Harris denied the petition, according to the order.
The motion also states that capital resentencings in Florida are common and the case will answer if and why the 5th DCA should have jurisdiction to review a petition related to the death penalty since “it will never review capital resentencings as appeals of right,” the motion stated.
The motion states that if the two judges are wrong, as defense attorneys argue, the court should state that before the “two-judge decision may take root as precedent.”
“If this court is going to chart a new path, taking jurisdiction of capital resentencing matters over which the Supreme Court has claimed exclusive jurisdiction, it should do so en banc, not through the voice of two judges,” the motion states.
The 5th DCA’s website listed 12 judges.
The hearing against Victorino and Hunter for the 2004 murders in which six people were killed was about to enter its third day on April 27 when the 5th District Court of Appeal granted a prosecution request to stop the proceedings.
Circuit Judge Randell Rowe III said Friday that he would have jurors return to the Volusia County Courthouse in DeLand at 10 a.m. Tuesday to determine whether they can continue to serve; then the resentencing hearing would proceed.
This article originally appeared on The Daytona Beach News-Journal: Defense in Xbox mass murder asks for review of death penalty ruling
