Portrait of Ray Rascon

Ray Rascon

Recently on October 4, 2021, the Florida Supreme Court heard oral arguments on appeal in the case of Mark Sievers. Sievers was convicted in December 2019 of the brutal first-degree murder of his wife. A Lee County jury recommended the death sentence for Sievers, and Judge Bruce E. Kyle sentenced him to death in January 2020. Attorneys for Sievers filed the appeal with the Florida Supreme Court in February 2020.

Among the eighteen issues argued on appeal, was the issue of the prosecution’s timeliness in filing a notice to seek the death penalty. Justice Couriel and Justice Muñiz spent a significant amount of time questioning each counsel about the central issue of timeliness. Kary Kinney represented Sievers and on behalf of the State of Florida was assistant attorney general Christina Pacheco.

If a prosecutor in a capital offense case intends on seeking the death penalty, Section 782.04(1)(b) of the Florida Statutes, and its counterpart in Rule 3.181 of the Florida Rules of Criminal Procedure, generally set forth a notice requirement. Specifically, Rule 3.181 states:

The prosecutor must give notice to the defendant of the state’s intent to seek the death penalty. The notice must be filed with the court within 45 days of arraignment. The notice must contain a list of the aggravating factors the state intends to prove and has reason to believe it can prove beyond a reasonable doubt. The court may allow the prosecutor to amend the notice upon a showing of good cause.

Fla. R. Crim. P. 3.181.

On the one hand, Rule 3.181 addresses the temporal period of when to file and when it is permissible to amend. On the other hand, Rule 3.050 addresses extensions of the temporal period, and states as follows:

The court for good cause shown may, at any time, in its discretion (1) with or without notice, order the period enlarged if a request, therefore, is made before the expiration of the period originally prescribed or extended by a previous order or (2) upon motion made and notice after the expiration of the specified period, permit the act to be done when the failure to act was the result of excusable neglect.

Fla. R. Crim. P. 3.050 (emphasis added).

In the Sievers case at hand, the trial court noted the date of arraignment to be May 9, 2016, although the defense argued the May 5th filing of the “waiver of arraignment” should have acted as the de facto arraignment date (the trial judge determined the pleading was not designed to trigger a waiver of arraignment). This effectively placed the prosecution’s June 22nd filing of a notice on the 44th day of the period and the prosecution’s subsequent amendment to include aggravating factors beyond the prescribed time period. The prosecution’s reason for the amendment was simply inadvertence.

The Florida Supreme Court will now have to decide whether a statement of inadvertency is sufficient for a showing of good cause under the present circumstances. The Court’s decision will certainly carry great precedential weight if the Court finds a harmless error in the five-day non-prejudicial delay in light of over three years leading up to the trial of the case. As Justice Couriel positioned the issue, “it sounds like you’re saying it was just tardily filed, oops, and the court then found good cause shown. I’m a little concerned about that as a basis for finding good cause shown.” Justice Muñiz echoed the concern, “so we would have to say that essentially ignorance of the new law is good cause.”

The central issue in the case highlights the importance of procedural compliance and begs the question: why do we set forth rules in the first place? The difference between life and death can come down to the form of a pleading, notice, or the timeliness of a request for extension, as may occur in this case. The stakes in this case juxtaposed to mere inadvertence are awfully high.

  • In re Amendments to Florida Rules of Criminal Procedure Rule 3.181
  • In re Amendments to Florida Rules of Criminal Procedure Rule 3.050
  • https://www.news-press.com/story/news/2021/10/05/mark-sievers-curtis-florida-supreme-court-asked-overturn-death-ruling/6003471001/