`
`
`
` Cite as: 583 U. S. ____ (2018)
`
`BREYER, J., dissenting
`
`SUPREME COURT OF THE UNITED STATES
`
` DALE GLENN MIDDLETON
`
` v.
`FLORIDA
`
`
`
`17–6580
`
`
`
`17–6735
`
`
`
`RANDY W. TUNDIDOR
`
`v.
`FLORIDA
`ON PETITIONS FOR WRITS OF CERTIORARI TO THE SUPREME
`
`
`COURT OF FLORIDA
`
`Nos. 17–6580 and 17–6735. Decided February 26, 2018
`
`
`The petitions for writs of certiorari are denied.
`
` JUSTICE BREYER, dissenting from the denial of certiorari.
`
`For the reasons set forth in my concurring opinions in
`
`Hurst v. Florida, 577 U. S. ___, ___ (2016) (opinion concur-
`
`ring in judgment), and Ring v. Arizona, 536 U. S. 584, 613
`(2002) (same), I would vacate and remand these cases for
`the Florida Supreme Court to address the Eighth
`Amendment issue in the first instance. I therefore agree
`with the dissenting opinion of JUSTICE SOTOMAYOR. In my
`view, “the Eighth Amendment requires individual jurors
`to make, and to take responsibility for, a decision to sen-
`tence a person to death.”
`Id., at 619.
`I respectfully
`
`dissent.
`
`
`
`
`
`
`
`
`
`1
`
` Cite as: 583 U. S. ____ (2018)
`
` SOTOMAYOR, J., dissenting
`
`
`SUPREME COURT OF THE UNITED STATES
`
` DALE GLENN MIDDLETON
`
` v.
`FLORIDA
`
`17–6580
`
`
`
`17–6735
`
`
`
`RANDY W. TUNDIDOR
`
`v.
`FLORIDA
`ON PETITIONS FOR WRITS OF CERTIORARI TO THE SUPREME
`
`
`COURT OF FLORIDA
`
`Nos. 17–6580 and 17–6735. Decided February 26, 2018
`
` JUSTICE SOTOMAYOR, with whom JUSTICE GINSBURG
`
`joins, dissenting from the denial of certiorari.
`
`
`Yet again, the Florida Supreme Court has failed to
`address an important Eighth Amendment claim raised by
`capital defendants regarding the propriety of jury instruc-
`
`tions that repeatedly emphasized that the jurors’ role in
`
`sentencing the defendants to death was merely advisory. I
`dissented once before from the denial of certiorari in
`
`Truehill v. Florida, ante, p. ___, based on the same failure.
`Because two more capital cases have now come and gone
`
`without any change, from either the court below or this
`
`Court, I feel compelled to elaborate further.
`
`Like the two petitioners in Truehill, Dale Middleton and
`
`Randy Tundidor were sentenced to death under a Florida
`capital sentencing scheme that this Court has since de-
`clared unconstitutional. See Hurst v. Florida, 577 U. S.
`___ (2016). Relying on the unanimity of the juries’ rec-
`ommendations of death, the Florida Supreme Court post-
`Hurst declined to disturb the petitioners’ death sentences,
`reasoning that the unanimity ensured that jurors had
`made the necessary findings of fact under Hurst. By doing
`
`so, the Florida Supreme Court effectively transformed the
`
`
`
`
`
`
`
`
`
`
`
`2
`
`
`
` MIDDLETON v. FLORIDA
`
` SOTOMAYOR, J., dissenting
`
`
`pre-Hurst jury recommendations into binding findings of
`
` fact with respect to the petitioners’ death sentences.
` Having so concluded, the Florida Supreme Court con-
`
`
`tinually refuses to grapple with the Eighth Amendment
`
`
` implications of that holding. If those then-advisory jury
`findings are now binding and sufficient to satisfy Hurst,
`petitioners contend that their sentences violate the Eighth
`
`Amendment because the jury instructions in their cases
`
`repeatedly emphasized the nonbinding, advisory nature of
`the jurors’ role and that the judge was the final deci-
`sionmaker. This Court has unequivocally held “that it is
`
`constitutionally impermissible to rest a death sentence on
`
`a determination made by a sentencer who has been led to
`
`believe that the responsibility for determining the appro-
`priateness of the defendant’s death rests elsewhere.”
`Caldwell v. Mississippi, 472 U. S. 320, 328–329 (1985).
`
`
`At least four times now, capital defendants in Florida
`have come to this Court, their last resort before their
`death sentences become final, seeking our intervention on
`this issue. Each time, this Court has refused to act, let-
`ting stand the petitioners’ death sentences despite the
`
`substantiality of their unaddressed Eighth Amendment
`challenges. Because I continue to believe that “the stakes
`in capital cases are too high to ignore such constitutional
`
`challenges,” Truehill, ante, at 2, I again dissent from this
`inaction and would vacate and remand these cases to the
`Florida Supreme Court.
`
`
`
`
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