John F. Mosley v. State of Florida

Supreme Court of Florida
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No. SC2023-1091
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JOHN F. MOSLEY,
Appellant,

vs.

STATE OF FLORIDA,
Appellee.

November 21, 2024

PER CURIAM.

We have twice vacated the death sentence imposed on John F.

Mosley for the first-degree murder of his infant son. Most recently,

in 2022, we vacated the death sentence imposed after Mosley’s

second penalty phase trial. Mosley v. State, 349 So. 3d 861, 863

(Fla. 2022). But we concluded that Mosley was not “entitled to a

third penalty phase trial.” Id. We “remand[ed] solely for a new

hearing pursuant to Spencer v. State, 615 So. 2d 688 (Fla. 1993),

and a new sentencing hearing.” Mosley, 349 So. 3d at 870. We did

so because we agreed with Mosley that “the trial court failed to
address Mosley’s unequivocal motion to represent himself at his

Spencer hearing.” Id. at 863 (footnote omitted).

Upon remand, Mosley ironically wasted little time in seeking to

have counsel appointed, including for the new Spencer hearing. In

any event, the trial court again imposed a death sentence, which

Mosley now appeals. We have jurisdiction. See art. V, § 3(b)(1),

Fla. Const. We affirm. The two issues raised by Mosley are not

properly before this Court.

I. BACKGROUND

A jury convicted Mosley of the first-degree murders of his ten-

month-old son, Jay-Quan, and the boy’s mother, Lynda Wilkes.1

The murders took place on April 22, 2004. The facts surrounding

the murders are set forth in prior opinions. See Mosley v. State,

209 So. 3d 1248, 1254-55 (Fla. 2016); Mosley v. State, 46 So. 3d

510, 514-15 (Fla. 2009). In short, evidence—including eyewitness

testimony—presented at Mosley’s trial in 2005 established that “he

strangled . . . Wilkes; asphyxiated . . . Jay-Quan, in a garbage bag;

and disposed of both their bodies, hers by immolation, his in a

1. Mosley received a life sentence for the Wilkes murder.

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dumpster.” Mosley, 349 So. 3d at 863. “[T]he police were able to

recover Wilkes’s remains, which were badly burned,” but “the

baby’s body was never recovered.” Mosley, 46 So. 3d at 516.

Wilkes’s remains were so badly skeletonized that the Chief Medical

Examiner, Dr. Margarita Arruza, who conducted the autopsy,

testified that she could not pinpoint a cause of death beyond just

“call[ing] it a homicidal violence of unspecified means.” And

because the baby’s body was never recovered, Dr. Arruza

unremarkably testified that a healthy ten-month-old baby would

not live long if placed into a trash bag that is then tied shut.

In our most recent opinion, we laid out the procedural history

leading up to and including Mosley’s second penalty phase. See

Mosley, 349 So. 3d at 863-66. As noted above, although we vacated

Mosley’s death sentence, we rejected his “allegations of error at his

[second] penalty phase.” Id. at 869. One allegation of error was

Mosley’s claim “that the trial court erred in refusing to consider his

motion for an evidentiary hearing based on newly discovered

evidence.” Id. at 870. We concluded that “the trial court correctly

denied the motion because Mosley was not authorized to file it

himself while represented by counsel.” Id.

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After we upheld Mosley’s second penalty phase and ordered

the limited remand, Mosley’s appointed counsel filed a document in

the circuit court on January 2, 2023, seeking to “explicit[ly] . . .

adopt[]” Mosley’s previously filed (and unauthorized) claim of newly

discovered evidence. Specifically, counsel sought to adopt Mosley’s

claim that Dr. Arruza, who apparently retired in 2011 due to

dementia, was likely impaired when conducting the autopsy of

Wilkes’s body and when testifying at Mosley’s original trial in 2005.

Counsel noted that this Court had rejected this claim but not on its

merits. And counsel requested an evidentiary hearing, relying on

this Court’s decision in Farina v. State, 191 So. 3d 454 (Fla. 2016),

for the proposition that claims of newly discovered evidence should

be brought as soon as possible and not postponed until after

resentencing.

On February 3, 2023, the trial court entered a written order

summarily denying the “adopted” motion, concluding that “the

contents of [the] motion were neither newly discovered nor likely to

produce an acquittal or lesser sentence on retrial.” Among other

things, the court reasoned that the allegations did not discredit Dr.

Arruza’s testimony and that even if they did, the testimony “was of

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little evidentiary value.” The court explained that because of the

condition of “Wilkes’s burnt, skeletal remains,” Dr. Arruza “could

not determine the manner of death beyond homicide,” and that

“[b]ecause Jay-Quan’s body was never found,” Dr. Arruza “testified

that a ten-month[-old] baby would suffocate to death if wrapped in

a trash bag.”

On May 31, 2023, the trial court held the new Spencer

hearing, at which the defense presented the testimony of Mosley’s

mother, wife, and daughters. On July 7, 2023, the trial court held

the sentencing hearing and filed the sentencing order, in which the

court imposed a sentence of death. The sentencing order largely

tracks the previous sentencing order, with some modifications to

reflect the new Spencer hearing.

This appeal followed.

II. ANALYSIS

Mosley raises two issues in this appeal. Neither issue is

properly before this Court. Accordingly, we affirm.

“Reverse” Jury Nullification

Mosley’s first claim seeks “a new penalty phase” on the ground

that the jury in the second penalty phase purportedly ignored the

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judge’s instructions regarding mitigation. Mosley interprets the

completed verdict form to mean that “the jury found that [he] did

not prove any valid mitigating evidence.” And he contrasts the

verdict form with the sentencing order, in which the trial judge

found and weighed twenty-eight mitigating circumstances

(assigning “slight,” “minimal,” or “no” weight to twenty-five of them,

and “moderate weight” to the remaining three). This supposed

dichotomy, according to Mosley, amounts to something Mosley

refers to as “reverse” jury nullification.

Mosley presented a version of this claim to the trial court after

the jury returned its verdict, and the issue was argued at a hearing.

But Mosley did not raise the issue on appeal of the second penalty

phase. In other words, he abandoned the issue on appeal. Cf.

Valentine v. State, 339 So. 3d 311, 314 n.5 (Fla. 2022) (holding that

defendant “abandoned any argument as to the denial of [a] claim”

when defendant “[o]n appeal . . . made no argument specifically

challenging that ruling”).

Putting aside that the sentencing order reflects that some

jurors found that certain mitigating circumstances existed, we do

not address this barred claim. We thus need not speculate

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whether, for example, the jurors concluded that Mosley failed to

establish that he “graduated from High School,” or whether they

instead concluded that Mosley’s high school diploma was simply

not mitigating—i.e., that it was not a circumstance that supported a

life sentence.

The time for Mosley to bring this penalty phase claim was on

direct appeal of the death sentence imposed after the second

penalty phase. In that appellate proceeding, we upheld the second

penalty phase against Mosley’s attack—an attack that did not

include this claim. Because this issue should have been raised in

that proceeding, the issue is now barred. Cf. Covington v. State,

348 So. 3d 456, 471 (Fla. 2022) (holding that a claim that “should

have been raised on direct appeal” was “procedurally barred” (citing

Dailey v. State, 283 So. 3d 782, 793 (Fla. 2019))).

Newly Discovered Evidence

Mosley next argues that the trial court erred in denying an

evidentiary hearing regarding his claim of newly discovered evidence

of the medical examiner’s alleged impairment. This issue, in which

Mosley seeks a new guilt phase, similarly exceeds the scope of this

Court’s remand. In any event, even assuming counsel properly

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“adopted” the unauthorized motion that Mosley filed years earlier,

the untimely appeal of the denial of the adopted motion warrants

dismissal.

Under Farina—on which Mosley and counsel relied in

requesting an evidentiary hearing prior to “the conclusion of his

resentencing,” 191 So. 3d at 456—the trial court’s order denying

relief here was a final order. See id. at 454-55 (treating “as an

appeal from a final order” the defendant’s petition that sought

“review of a trial court order that dismissed his motion for a new

trial based on newly discovered evidence”). The trial court issued

that final order on February 3, 2023. But Mosley did not appeal

that final order until August 3, 2023, when he appealed the new

sentencing order. Mosley’s appeal of the final order denying relief

was hardly “within 30 days of the rendition of the order.” Fla. R.

Crim. P. 3.851(f)(8); Fla. R. Crim. P. 3.850(k). Because Mosley’s

appeal of that final order is plainly untimely, we dismiss it.

Even if Mosley’s claim had been presented to us in a timely

manner, we would unhesitatingly reject it. To succeed on his claim

of newly discovered evidence, Mosley “must establish two prongs”:

first, “that the evidence was not known by the trial court, the party,

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or counsel at the time of trial and it could not have been discovered

through due diligence at the time of trial”; and, second, “that the

newly discovered evidence is of such a nature that it would

probably produce an acquittal on retrial.” Sheppard v. State, 338

So. 3d 803, 825 (Fla. 2022) (citing Jones v. State, 709 So. 2d 512,

521 (Fla. 1998)). Putting aside the fact that, as the trial court

determined, Mosley’s claim was “based upon correspondence and

filings that predate the murders” and that could have been

presented at trial “to impeach Dr. Arruza,” Mosley cannot possibly

establish the second prong. Whether or not Dr. Arruza was

impaired, her testimony—as outlined above—regarding Wilkes’s

skeletonized remains and the likelihood that a baby would die if tied

up in a garbage bag was of such little evidentiary value that it had

no impact on the outcome of Mosley’s guilt phase.

III. CONCLUSION

For these reasons, we affirm Mosley’s death sentence.

It is so ordered.

MUÑIZ, C.J., and CANADY, LABARGA, COURIEL, GROSSHANS,
FRANCIS, and SASSO, JJ., concur.

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION
AND, IF FILED, DETERMINED.

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An Appeal from the Circuit Court in and for Duval County,
Michael R. Weatherby, Judge
Case No. 162004CF006675AXXXMA

Matthew S. Metz, Public Defender, and George D.E. Burden,
Assistant Public Defender, Seventh Judicial Circuit, Daytona
Beach, Florida,

for Appellant

Ashley Moody, Attorney General, Tallahassee, Florida, and
Lisa-Marie Lerner, Assistant Attorney General, West Palm Beach,
Florida,

for Appellee

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