Dusty Ray Spencer v. State of Florida

Supreme Court of Florida
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No. SC2026-0880
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DUSTY RAY SPENCER,
Appellant,

vs.

STATE OF FLORIDA,
Appellee.

June 18, 2026

PER CURIAM.

Dusty Ray Spencer is a prisoner under sentence of death for

the murder of his wife, Karen Spencer. Governor DeSantis issued a

death warrant on May 26, 2026, setting Spencer’s execution for

June 25, 2026. Spencer appeals from the trial court’s order

summarily denying his third successive motion for post-conviction

relief filed under Florida Rule of Criminal Procedure 3.851. He also

requests a stay of execution. We have jurisdiction. See Art. V, §

3(b)(1), Fla. Const.; see also State v. Fourth Dist. Ct. of Appeal, 697

So. 2d 70, 71 (Fla. 1997) (holding “that in addition to our appellate
jurisdiction over sentences of death, we have exclusive jurisdiction

to review all types of collateral proceedings in death penalty cases”).

For the reasons set out below, we affirm the summary denial of

post-conviction relief and deny Spencer’s request for a stay of

execution.

I

On January 18, 1992, Spencer murdered his wife and

business partner, Karen Spencer. This Court previously set out

these facts:

In early December 1991, Karen asked Spencer to move
out of the house. On December 10, 1991, Spencer
confronted Karen about money which she had withdrawn
from the business account. During this argument,
Spencer choked and hit Karen and threatened to kill her.
Spencer was arrested after Karen reported the incident to
the police. According to Karen’s account to a police
officer, Spencer called her from jail the next day and
stated that he was going to finish what he had started as
soon as he got out of jail.

Although Karen asked Spencer to return home
during the holidays, she asked him to leave again after
Christmas was over. While Spencer was drinking with
friends on New Year’s Day, he told one friend that he
should take Karen out on their boat and throw her
overboard. Two days later he told that friend that Karen
refused to go out on the boat anymore.

On January 4, 1992, Spencer returned to Karen’s
home and got into a fight with Karen in her bedroom.

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Karen’s teenage son Timothy Johnson was awakened by
this fight. When Timothy entered his mother’s bedroom,
he saw Spencer on top of Karen, hitting her. When
Timothy tried to intervene, Spencer struck him in the
head with a clothes iron. Spencer followed Timothy back
to his bedroom and struck him several more times with
the iron. Spencer told Timothy, “You’re next; I don’t want
any witnesses.” Karen fled the house and sought help
from a neighbor. When Timothy attempted to summon
help on the telephone, Spencer yanked the phone cord
from the wall. Spencer then fled the house and left town.
Timothy and Karen were taken to the hospital and
treated for their injuries. At the hospital, Karen told the
treating physician that Spencer had hit her with an iron.
At trial, the physician stated that Karen’s wounds were
consistent with having been inflicted with an iron.

Spencer returned to Karen’s house on the morning
of January 18, 1992. Timothy was again awakened by a
commotion, grabbed a rifle from his mother’s bedroom,
and found Karen and Spencer in the backyard. Timothy
testified that Spencer was hitting Karen in the head with
a brick, and that he observed a lot of blood on Karen’s
face. Timothy tried to shoot Spencer, but the rifle
misfired and he instead struck Spencer in the head with
the butt of the rifle, which was shattered by this impact.
Spencer pulled up Karen’s nightgown and told her to
“show your boy your pussy.” He then slapped Karen’s
head into the concrete wall of the house. Karen told
Spencer to “stop.” When Timothy attempted to carry his
mother away, Spencer threatened him with a knife.
Timothy ran to a neighbor’s house to summon aid.

When the police arrived at the scene, they found
Karen dead. She had been stabbed four or five times in
the chest, cut on the face and arms, and had suffered
blunt force trauma to the back of the head. The medical
examiner testified that cuts on Karen’s right hand and
arm were defensive wounds and that death was caused

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by blood loss from two penetrating stab wounds to the
heart and lung.

Spencer v. State, 645 So. 2d 377, 379–80 (Fla. 1994).

A jury found Spencer guilty of first-degree murder, aggravated

assault, aggravated battery, and the lesser-included offense of

attempted second-degree murder. Id. at 380. The jury then

recommended a death sentence by a seven-to-five vote. Id. The

trial court agreed and sentenced Spencer to death. Id.

On direct appeal, we affirmed 1 Spencer’s first-degree murder

conviction but vacated the death sentence and remanded for

reconsideration, concluding that the trial court had improperly

found an aggravating factor and failed to consider two statutory

mitigating circumstances. Id. at 385. After hearing additional

argument from the parties on remand, the trial court again imposed

a death sentence. Spencer v. State, 691 So. 2d 1062, 1063 (Fla.

1996). 2 We affirmed that sentence on appeal. Id. at 1066. For

1. There was no majority opinion, but there was a majority to
affirm the judgment of conviction.

2. The trial court determined the State had proven two
aggravating factors: (1) previous conviction of another violent felony
based upon Spencer’s contemporaneous convictions and (2) the
murder was especially heinous, atrocious, or cruel (“HAC”).

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post-conviction timeliness purposes under Florida Rule of Criminal

Procedure 3.851, finality occurred when the United States Supreme

Court denied certiorari review on October 6, 1997. See Spencer v.

Florida, 522 U.S. 884 (1997).

Over the years since, on multiple occasions, Spencer has

asserted unsuccessful collateral challenges to both the judgment

and death sentence, in both state and federal courts. See Spencer

v. State, 842 So. 2d 52 (Fla. 2003) (affirming denial of Spencer’s

initial motion for post-conviction relief and denying habeas relief);

Spencer v. State, 23 So. 3d 712 (Fla. 2009) (unpublished table

decision) (affirming summary denial of Spencer’s first successive

motion for post-conviction relief); Spencer v. State, 259 So. 3d 712

(Fla. 2018) (affirming summary denial of Spencer’s second

successive motion for post-conviction relief); Spencer v. Florida, 587

Spencer, 691 So. 2d at 1063. It also found two statutory mitigating
circumstances: (1) Spencer committed the murder while under
extreme mental or emotional disturbance and (2) his ability to
appreciate the criminality of his conduct or conform his conduct to
the law was impaired. Id. The trial court also identified several
non-statutory mitigating circumstances, including Spencer’s history
of drug and alcohol abuse, paranoid personality disorder, childhood
sexual abuse by his father, honorable military service, good
employment record, and ability to function in a structured
environment without women. Id.

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U.S. 1028 (2019) (denying Spencer’s petition for writ of certiorari);

Spencer v. Crosby, No. 6:03-CV-991-ORL-28, 2006 WL 7069916

(M.D. Fla. Sep. 7, 2006) (denying habeas relief); Spencer v. Sec’y,

Dep’t of Corr., 609 F.3d 1170 (11th Cir. 2010) (affirming denial of

habeas relief); Spencer v. McNeil, 562 U.S. 1203 (2011) (denying

Spencer’s petition for writ of certiorari).

On May 26, 2026—twenty-nine years after Spencer’s death

sentence became final and fifteen years following disposition of

Spencer’s last collateral effort—Governor DeSantis signed Spencer’s

death warrant, setting his execution for June 25, 2026. Spencer

subsequently filed a demand for additional public records, one

directed to the Florida Department of Corrections (“the department”)

under section 27.7081(8), Florida Statutes, and Florida Rule of

Criminal Procedure 3.852(i), seeking records related to Florida’s

lethal injection protocol. The department and the state attorney’s

office both filed objections to the demand.

In conjunction with his public-records demand, Spencer also

filed his third successive motion for post-conviction relief, making

two claims: (1) that the department’s alleged failure to follow its

published lethal injection protocol violates his rights under the

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Eighth and Fourteenth Amendments to the United States

Constitution and corresponding provisions of the Florida

Constitution; and (2) that his execution would constitute cruel and

unusual punishment under the Eighth Amendment, given his

advanced age and status as an elderly person. The trial court

denied Spencer’s public-records demand and, in a separate order,

summarily denied his motion for post-conviction relief.

Spencer now seeks relief from this Court, raising two issues

related to his latest post-conviction motion. 3

II

The trial court has the authority to summarily deny a

successive motion for post-conviction relief if either it fails to

sufficiently “allege factual elements sufficient to constitute a basis

for the collateral relief sought” or “the record conclusively shows no

entitlement to relief.” State v. Weeks, 166 So. 2d 892, 897 (Fla.

1964) (internal quotations omitted); see also State v. Reynolds, 238

So. 2d 598, 600 (Fla. 1970) (holding that the trial court “may make

a summary disposition” when it determines that the motion either

3. Spencer does not raise the denial of his public-records
demand as a basis for vacating the trial court’s summary denial.

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“is defective in form or substance and insufficient to state a prima

facie case entitling the prisoner to relief” or “appears to be

sufficient, but the files and records in the case conclusively refute

the allegations or otherwise conclusively preclude relief”);

Muhammad v. State, 426 So. 2d 533, 535 (Fla. 1982) (“If the motion

and the record and files of the case conclusively show that the

movant is not entitled to relief, the motion may be denied without

an evidentiary hearing.”); Fla. R. Crim. P. 3.851(f)(5)(B).

In reviewing the trial court’s summary denial, we must treat

the defendant’s “allegations as true except to the extent that they

are conclusively rebutted by the record.” Harich v. State, 484 So.

2d 1239, 1241 (Fla. 1986); see also Tompkins v. State, 994 So. 2d

1072, 1081 (Fla. 2008). “The defendant bears the burden of

establishing a prima facie case based upon a legally valid claim.

Mere conclusory allegations are not sufficient to meet this burden.”

Freeman v. State, 761 So. 2d 1055, 1061 (Fla. 2000). “We must

examine each claim to determine if it is legally sufficient, and, if so,

determine whether or not the claim is refuted by the record.” Id.

Applying these principles here, we conclude that the trial court’s

summary denial was not error meriting any appellate relief.

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A

Spencer first argues that the department’s alleged failure to

adhere to its published lethal injection protocol violates his rights

under the Eighth and Fourteenth Amendments to the United States

Constitution and corresponding provisions of the Florida

Constitution. Relying on records disclosed within another inmate’s

post-warrant litigation, Spencer claims the department routinely

deviates from its published lethal injection protocol.

Spencer describes several examples of alleged

maladministration of that protocol: record logs listing the ad hoc

removal of lethal injection drugs from inventory, use of expired

drugs—in particular, etomidate—during some executions, failure to

contemporaneously document and accurately record the type and

amount of drugs used during executions, and the administration of

incorrect drug doses. He maintains these alleged deviations from

Florida’s constitutional lethal injection protocol create risk of

needless pain and suffering. He also contends that, because of his

cirrhosis, Florida’s lethal injection protocol poses a heightened risk

of pain and suffering as applied to him.

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The trial court summarily denied relief, concluding the claim

was both untimely and without merit. We agree on both points.

At the outset, the claim is untimely. Rule 3.851(d)(1) requires

that a “motion to vacate judgment of conviction and sentence of

death must be filed by the defendant within 1 year after the

judgment and sentence become final.” Spencer’s judgment and

sentence became final nearly thirty years ago. Rule 3.851(d)(2)

provides three exceptions to raising a post-conviction claim outside

of the one-year timeframe:

(A) the facts on which the claim is predicated were
unknown to the movant or the movant’s attorney and
could not have been ascertained by the exercise of due
diligence, or

(B) the fundamental constitutional right asserted was not
established within the period provided for in subdivision
(d)(1) and has been held to apply retroactively, or

(C) postconviction counsel, through neglect, failed to file
the motion.

Spencer has not demonstrated that any exception applies here.

Spencer’s motion described his cirrhosis as “longstanding,”

and his attached, supporting medical declaration referenced

scarring effects associated with his “significant past medical history

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of cirrhosis” occurring secondary to COVID in 2020. At his Huff4

hearing, Spencer’s lawyer acknowledged that the cirrhosis diagnosis

“has been in the record since 2012.” Yet Spencer did not assert the

condition as a basis for challenging Florida’s lethal injection

protocol until after the signing of his death warrant, his lawyer

insisting that any earlier challenge would have been “deemed

premature because he was not eligible for execution at that time,”

thus placing him in a “Catch-22.” Not so.

The exceptions provided by rule 3.851—most relevant here

being the exception under subdivision (d)(2)(A)—do not permit a

capital defendant to wait indefinitely until a death warrant is

issued; the clock instead runs from the date of discoverability, even

for a claim in a post-warrant motion. Cf. Mills v. State, 684 So. 2d

801, 805 (Fla. 1996) (applying discoverability requirement in review

of post-warrant motion and finding claim procedurally barred

because the witness on which it relied testified at the original trial

and had been available since then); Glock v. Moore, 776 So. 2d 243,

251 (Fla. 2001) (finding claim in post-warrant motion for relief to be

4. Huff v. State, 622 So. 2d 982 (Fla. 1993).

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procedurally barred because it was based on information available

in publicly available reports “for a number of years”). Florida’s

“current three-drug protocol has remained essentially unchanged

since 2017.” Randolph v. State, 422 So. 3d 166, 172 (Fla.), cert.

denied, 146 S. Ct. 819 (2025). According to Spencer’s own papers,

his cirrhosis diagnosis is not new. He has known about it for years.

We have consistently rejected arguments that method-of-execution

claims are ripe during post-warrant litigation when a medical

condition was discovered years earlier. See Lukehart v. State,

SC2026-0736, 2026 WL 1480328, at *4 (Fla.) (documented kidney

disease in 2023), cert. denied, 25-7491, 2026 WL 1530138 (U.S.

June 1, 2026); Randolph, 422 So. 3d at 172–73 (diagnosed with

lupus in 1990); Tanzi v. State, 407 So. 3d 385, 392 (Fla.) (medical

conditions present as early as November 2009), cert. denied, 145 S.

Ct. 1914 (2025); Rogers v. State, 409 So. 3d 1257, 1266–67 (Fla.)

(experts testified about porphyria diagnosis during penalty phase),

cert. denied, 145 S. Ct. 2695 (2025); Cole v. State, 392 So. 3d 1054,

1064–65 (Fla.) (suffered from Parkinson’s since 2017), cert. denied,

145 S. Ct. 109 (2024).

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Moreover, Spencer does not meaningfully identify how the

alleged deviations from protocol might exacerbate his cirrhosis,

causing needless suffering. Nor does he explain why any cirrhosis-

related risk would arise only in the context of those deviations. To

the contrary, Spencer concedes that his cirrhosis poses a risk “even

if the protocol is followed.” Because his asserted cirrhosis is

untethered from the alleged deviations from protocol, the claim does

not rest on a new operative factual predicate and remains untimely

under rule 3.851.

Even if the claim was timely, though, it would nevertheless fail

on the merits. To prevail on a method-of-execution claim, Spencer

must “(1) establish that the method of execution presents a

substantial and imminent risk that is sure or very likely to cause

serious illness and needless suffering and (2) identify a known and

available alternative method of execution that entails a significantly

less severe risk of pain.” Asay v. State, 224 So. 3d 695, 701 (Fla.

2017) (citing Glossip v. Gross, 576 U.S. 863, 877 (2015)); Bucklew v.

Precythe, 587 U.S. 119, 139–40 (2019) (reconfirming “that anyone

bringing a method of execution claim alleging the infliction of

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unconstitutionally cruel pain must meet the Baze-Glossip test” 5).

Spencer falls short of meeting this standard. His allegations

center on the purported deviations from protocol indicated by the

records in his possession. Here, the relevant “question is not

whether protocol deviations occurred,” but whether Spencer’s

“allegations would demonstrate a substantial and imminent risk

that is sure or very likely to cause serious illness and needless

suffering.” Heath v. State, 426 So. 3d 1253, 1262 (Fla.), cert.

denied, No. 25-6746, 2026 WL 363902 (U.S. Feb. 10, 2026). They

do not. As we recently explained:

The alleged failure to document the removal of drugs
from inventory until one or two days after an execution
would not, without more, show a substantial and
imminent risk that is sure or very likely to cause serious
illness and needless suffering during an execution. Nor
would the alleged failure to log the removal of etomidate
from inventory establish such a risk where the autopsy
indicates the drug was, in fact, administered. . . . [The
defendant’s] suggestion that inventory removals . . .
reflect amounts less than required by the protocol show
that incorrect doses were used is speculative and [the
defendant] does not allege that such incorrect doses
would create a demonstrated risk of severe pain. The
same is true of the alleged use of expired drugs.

Id.

5. Baze v. Rees, 553 U.S. 35 (2008).

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Spencer’s cirrhosis-based claim fares no better. He insists the

amount of etomidate used during the execution could spike his

blood pressure, rupture his esophageal varices, and cause severe

bleeding. He submitted an affidavit from Dr. Joel Zivot, who opined

to those possible effects. “But speculative and conclusory

allegations that lethal injection protocols present a substantial risk

of serious harm are insufficient to warrant an evidentiary hearing.”

Id. at 1261. Spencer’s allegations concerning the potential

interaction between etomidate and his cirrhosis remain speculative

and do not “establish that the method of execution presents a

substantial and imminent risk that is sure or very likely—in other

words, a virtual certainty—to cause serious illness and needless

suffering.” Id. at 1262. Accordingly, Spencer has failed to

demonstrate the “virtual certainty” of needless suffering required to

make a viable Eighth Amendment claim.

Finally, Spencer also failed to identify a known and available

alternative method of execution that would significantly reduce the

alleged risk of pain, instead claiming that doing so would be

“impractical.” See Glossip, 576 U.S. at 877 (requiring a capital

defendant making a method-of-execution challenge to identify an

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alternative method). A proposed alternative method must be

“feasible, readily implemented, and in fact significantly reduce[] a

substantial risk of severe pain.” Tanzi, 407 So. 3d at 393

(alteration in original) (quoting Glossip, 576 U.S. at 877). Spencer

has made no such showing.

Accordingly, the trial court did not err in denying an

evidentiary hearing and summarily denying this claim.

B

Spencer next argues his execution would violate the Eighth

Amendment because he is seventy-four years old and an elderly

person. He asks this Court to recognize a categorical exemption

from execution based on advanced age, contending his execution

would otherwise constitute cruel and unusual punishment and

offend evolving standards of decency. The trial court properly

summarily denied this claim.

As a threshold matter, this claim is untimely and procedurally

barred. Spencer has not demonstrated that any exception to the

one-year filing requirement imposed by rule 3.851(d)(1) applies. As

the trial court observed, Spencer is now seventy-four years old, yet

he did not raise this claim until nearly a decade after reaching the

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age at which he now contends a categorical exemption from

execution should apply. Indeed, he identifies no meaningful

distinction arising within the year before filing: his age obviously

always being known, and the mere progression from one year in age

to the next then not creating a new factual predicate every time

under rule 3.851. See Smithers v. State, 420 So. 3d 460, 465 (Fla.)

cert. denied, 146 S. Ct. 323 (2025) (“While Smithers is correct that

he could not have known exactly when his death warrant would be

signed, he has known for several years that upon the signing of his

death warrant and the exhaustion of any related successive

postconviction process, he would fall within the class of individuals

that he now seeks to exempt from execution due to advanced age.

Thus, his claim is untimely and fails to meet any exception provided

in rule 3.851(d)(2).”).

Even so, we have rejected similar requests to recognize a

categorical exemption from execution based on advanced age. 6 See

6. To the extent Spencer points to Florida statutory provisions
enhancing punishments for criminal offenses committed against
victims aged sixty-five or older as evidence of evolving standards of
decency, those enactments do not alter our analysis. Neither the
United States Supreme Court nor this Court has recognized a

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generally id.; Trotter v. State, 428 So. 3d 68 (Fla.), cert. denied, 146

S. Ct. 755 (2026). The only age-based exemption from execution

recognized by the United States Supreme Court is for individuals

under the chronological age of eighteen when they committed the

offense. See Roper v. Simmons, 543 U.S. 551, 578 (2005).

Indeed, as we explained in Smithers:

Because the Supreme Court has interpreted the Eighth
Amendment to limit the exemption from execution . . .
based on age to those whose chronological age was less
than eighteen years at the time of their capital crime(s),
this Court is bound by those interpretations and is
precluded from interpreting Florida’s prohibition against
cruel and unusual punishment to exempt . . . those
whose chronological age was over eighteen years at the
time of their capital crime(s).

420 So. 3d at 465 (emphasis omitted) (quoting Gudinas v. State,

412 So. 3d 701, 713 (Fla. 2025)).

We have explained that the Supreme Court’s “interpretation of

the Eighth Amendment is both the floor and the ceiling for

protection from cruel and unusual punishment in Florida.”

Barwick v. State, 361 So. 3d 785, 794 (Fla. 2023) (addressing the

conformity clause of Article I, section 17 of the Florida

categorical exemption from execution based on advanced age, and
those provisions do not supply a basis to do so.

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Constitution). No decision from the Supreme Court has read the

Eighth Amendment as categorically exempting defendants of

advanced age from execution, and we are not about to create one

now. Spencer is thus foreclosed from relief on this basis.

III

For these reasons, we affirm the trial court’s summary denial

of Spencer’s third successive motion for post-conviction relief, and

we decline to stay his execution.

No oral argument is necessary, and no motion for rehearing

will be considered. The mandate shall issue immediately.

It is so ordered.

MUÑIZ, C.J., and COURIEL, GROSSHANS, FRANCIS, SASSO, and
TANENBAUM, JJ., concur.
LABARGA, J., concurs in result.

An Appeal from the Circuit Court in and for Orange County,
James Craner, Judge – Case No. 481992CF000473000AOX

Eric Pinkard, Capital Collateral Regional Counsel, Julissa Fontán,
Assistant Capital Collateral Regional Counsel, and John “Jack”
LoBianco, Assistant Capital Collateral Regional Counsel, Middle
Region, Temple Terrace, Florida,

for Appellant

James Uthmeier, Attorney General, Tallahassee, Florida, Joshua E.
Schow, Assistant Attorney General, Tampa, Florida, and Doris

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Meacham, Special Counsel, Assistant Attorney General, Tampa,
Florida,

for Appellee

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