Justice Jorge Labarga isn't saying his colleagues on the Florida Supreme Court made the wrong decision in denying a death-penalty appeal, but he disagrees with their reasoning in reaching that conclusion.

The court Thursday upheld an order denying relief for Grover B. Reed, convicted of killing a preacher's wife. Labarga agreed with the majority—but in result only, saying the court had taken the wrong road to arrive at its destination.

In "denying relief, the majority relies on State v. Poole, … a wrongfully decided opinion to which I strenuously dissented," the former chief justice wrote in his concurrence.

Attorney H.T. Smith, of H.T. Smith P.A., in Miami.

H.T. Smith, a professor at Florida International University who teaches and practices criminal law, said Labarga has been consistent.

"Justice Labarga did in fact, 'strenuously dissent' in the Poole case," Smith wrote in an email to the Daily Business Review. "Although he agrees with the court's decision to affirm the lower court's decision to deny relief to Mr. Reed, [Labarga] wants to make it abundantly clear that the Poole case should not be the basis for the court's decision—and make it clear that he is being consistent in his disapproval of the court's decision in Poole."

Aggravating circumstances

Defendant Reed sought to overturn his death sentence by pointing out problems in the case that relied on the U.S. Supreme Court's 2016 decision in Hurst v. Florida and the Florida Supreme Court's decision on remand in Hurst v. State.

In Hurst v. Florida, the U.S. Supreme Court found that Florida's sentencing scheme, which at that time allowed the judge alone to find the existence of an aggravating circumstance warranting the death sentence, was unconstitutional under the Sixth Amendment to the U.S. Constitution. The court had relied on its 2002 decision in Ring v. Arizona. There, the court found an Arizona capital sentencing system unconstitutional. That system let judges—instead of juries—find the existence of a harsher reason that warranted the trial court sentencing the defendant to death.

Reed's sentence became final in 1990, before the Supreme Court's decision in Ring v. Arizona. Appellant was unable to show cause as to why the Florida Supreme Court should not apply its decision in Hitchcock v. State. That decision prevented the retroactive application of Hurst v. Florida and Hurst v. State to defendants whose death penalties were already decided when the court ruled on Ring.

Regardless, the Florida Supreme Court found that there was not a Hurst v. Florida or Hurst v. State error in Reed's case because "a unanimous jury finding establishes the existence of at least one statutory aggravating circumstance beyond a reasonable doubt," according to the Florida Supreme Court opinion.

The court noted that two of the four statutory aggravating circumstances that the trial court found were established. It was when the jury found Reed guilty of the contemporaneous crimes of sexual battery and robbery.