MANATEE -- Accused triple murderer Andres "Andy" Avalos Jr. appeared in court Tuesday to argue that the state has no right to seek the death penalty against him due to a recent U.S. Supreme Court decision.
Avalos, 35, is charged with first-degree murder in the deaths of his wife, Amber Avalos; neighbor, Denise Potter; and Pastor James "Tripp" Battle in December 2014.
Investigators say Avalos hanged his 33-year-old wife from a cord Dec. 4 in the laundry room of their northwest Bradenton home, then beat and shot her. He then shot Potter, 46, who was visiting, before going to Bayshore Baptist Church and shooting Battle in front of his wife, Joy Battle.
Prosecutors announced they were seeking the death penalty in February 2015.
Avalos' attorney argued in court Tuesday that due to the Supreme Court decision in Hurst v. Florida, issued Jan. 12, the state's notice to seek the death penalty in Avalos' case was invalid. The Hurst decision states Florida's policy for having juries issue an "advisory sentence" and then allowing the judge to make the ultimate decision of life or death for the defendant is unconstitutional.
Though Avalos has not had a jury trial yet, his attorneys argued that since Florida has not taken steps to rewrite the death penalty process, the state cannot legally seek the death penalty against Avalos.
"Since there are no constitutional procedures in place or approved jury instructions, it is impermissible for the state to seek the death penalty," the motion states.
The motion argues that a court in Pinellas County has already struck down a notice of intent to seek the death penalty on those grounds.
A hearing to determine the validity of the claim will be held on March 22.
There was also a Forcett hearing in Avalos' case to determine if there was a conflict of interest with his defense attorney, who has previously served as counsel for a state witness. The judge ruled it was not a conflict of interest.
Avalos also was charged with attempted murder, after deputies say he used two sharpened toothbrushes to stab a fellow inmate at the Manatee County jail in December 2015, almost exactly a year after he was accused of the triple killing.
Kate Irby, Herald online/political reporter, can be reached at 941-745-7055. You can follow her on Twitter@KateIrby