Avalos’ defense appealing to Florida Supreme Court to stop state from seeking death penalty

Andres “Andy” Avalos’ Jr.’s defense team has filed an appeal with the Florida Supreme Court that argues the state cannot seek the death penalty against him.

Avalos is facing three counts of first-degree murder in the Dec. 4, 2014, slayings of his wife Amber Avalos, 33; neighbor Denise Potter, 46; and the Rev. James “Tripp” Battle, 31.

If convicted, Avalos would face life in prison or the death penalty — which the state has indicated it will seek and the defense continues to contest.

Currently, Avalos is set to stand trial beginning May 8. His lawyers plan to employ an insanity defense.

Avalos’ defense has argued that the state should not be allowed to seek the death penalty against him because Florida’s death penalty’s scheme first went into limbo following the U.S. Supreme Court’s Jan. 12, 2016, ruling in Hurst vs. Florida that found it unconstitutional that Florida judges, not juries, have the ultimate say in the death penalty.

While the state Legislature had worked quickly to pass corrective legislation, on March 7, 2016, the Florida Supreme Court ruled that the ruling in Hurst also required a unanimous vote by a jury to sentence someone to death, not a majority or super-majority as required by the old and new laws.

Last month, new state legislation was enacted that requires a unanimous vote by a jury to sentence a convicted murderer to death. Defense attorney Andrew Crawford subsequently argued before presiding Circuit Judge Diana Moreland that the state should be prohibited from seeking the death penalty retroactively using the sentencing scheme.

Crawford also argued that the aggravating factors required to impose the death penalty were not listed in the indictment charging Avalos with the three counts of first-degree murder. Moreland denied the defense motions.

Last week, an appeal was filed with the Florida Supreme Court in which Crawford requests that Moreland be prohibited from qualifying a jury to enter the death penalty phase should Avalos be convicted as charged.

In the 30-page petition filed Thursday, the defense again made similar arguments.

The Florida Office of the Attorney General’s response argues that the Hurst decision does not require that aggravating factors be determined by the grand jury; rather, following a guilty verdict, it is up to a jury to find those factors beyond a reasonable doubt. Further, Hurst did not eliminate the death penalty as possible sentence.

The state also cites the 1977 case Dobbert vs. Florida, which deals with intent, but does not prohibit the state Legislature from correcting issues with the sentencing scheme. Moreland has cited Dobbert similarly in other recent or pending death penalty cases.

This story was originally published April 11, 2017 at 9:05 PM with the headline "Avalos’ defense appealing to Florida Supreme Court to stop state from seeking death penalty."