Attorneys for Deltona Xbox killers ask state Supreme Court to order appeals court off case

Attorneys for two men in the Deltona Xbox mass murder facing a death-penalty resentencing have asked the Florida Supreme Court to order the 5^th District Court of Appeal in Daytona Beach off the case.

The petition criticizes the 5th District Court of Appeal's handling of the case as it asks the Supreme Court to order the 5th District to "rescind its unconstitutional claim of jurisdiction."

Troy Victorino, 47, and Jerone Hunter, 37, were convicted and initially sentenced to death in 2006 for their roles in the 2004 Deltona Xbox mass murder.

But their death sentences were later struck down. Their resentencing began earlier this year at the Volusia County Courthouse in DeLand.

If the state Supreme Court were to order the District Court of Appeal to give up jurisdiction, then the case's status would return to where it was prior to the appeal court's involvement. That means a unanimous jury recommendation of death would be needed for a judge to sentence Victorino and Hunter to death.

However, the state could mount a challenge of its own at that point.

Xbox mass murder resentencing jury vote fight

When the resentencing began, state law required a unanimous jury recommendation for death for a judge to be able to sentence someone to death. But on the day a 12-member jury was sworn in to hear the resentencing, the state passed a new law lowering the bar, requiring just eight jurors to recommend death to give a judge that option.

Circuit Judge Randell Rowe III rejected prosecutors' attempts to use the new law. As the resentencing began, the state appealed to the 5^th District Court of Appeal, which ruled on May 11 in favor of the state and ordered the judge to use the new law.

But the legal fighting delayed the resentencing. By the time it resumed, not enough of the 12 jurors would be available to finish the process. Rowe declared a mistrial. Prosecutors have said they plan to resentence the pair next year.

In a filing this week, attorneys for Hunter, Allison Ferber Miller and Garry Wood, and attorneys for Victorino, Ann E. Finnell and Gonzalo Andux, argue that, according to Florida’s Constitution, it is the state Supreme Court that has jurisdiction over the death-penalty resentencing of Hunter and Victorino.

The attorneys argue that the 5^th District Court of Appeal did not have the jurisdiction to order Rowe to use the new law.

The state Supreme Court “has repeatedly asserted its exclusive authority to decide any and all issues pertaining to the death penalty in this state,” according to the petition.

The petition states that the 5^th DCA will never have “ultimate jurisdiction” over Victorino's and Hunter’s cases because if they are again sentenced to death, their appeal will go to the state Supreme Court. If they are sentenced to life, they will get no appeal since their cases had already been reviewed.

The District Court of Appeal would have had jurisdiction only if Victorino and Hunter received completely new trials and were then convicted and sentenced to anything but death.

DCA held up Deltona Xbox Mass Murder resentencing

The petition states that the 5^th DCA misunderstands the Supreme Court’s precedents and relies on an “inapt and outdated precedent.”

“The Court should also act because the DCA here has shown itself incapable of handling these serious matters,” the petition reads.

The petition stated that the DCA in issuing the stay to stop the resentencing had telegraphed that it would ultimately rule for prosecutors. It could have gone ahead and issued the order to use the new law then.

“Instead, the DCA took jurisdiction, stopped an ongoing capital trial dead in its tracks, one in which the state had already presented seven witnesses and introduced 56 exhibits into evidence. And the DCA continued to hold up proceedings for weeks before issuing not a reasoned opinion, but a mere summary order holding the new law would apply,” the petition stated.

The defense petition then states the DCA tried to avoid issuing a decision.

"The DCA then waited another two months, and sought a way out of any decision at all. It only issued a decision two months later, after both parties Informed the court the issue was in no way moot.”

The petition states “chaos” will follow if each of the state’s six DCAs, inexperienced in death penalty issues, are allowed to reach decisions on such cases. That chaos will ultimately have to be cleared up by the state Supreme Court.

The Deltona Xbox mass murders

Besides Victorino and Hunter, two other men, Michael Salas and Robert Cannon, took part in the massacre in which they broke into a home on Telford Lane and used bats and knives to fatally beat and stab six people on Aug. 6, 2004.

Killed in the massacre were Erin Belanger, 22; Michelle Nathan, 19; Roberto "Tito" Gonzalez, 28; Jonathan Gleason, 17; Francisco "Flaco" Ayo-Roman, 30; and Anthony Vega, 34. A dog was also killed.

Salas was also convicted at trial but was sentenced to life. Cannon did not go on trial but reached a plea deal in which he agreed to testify against the others in exchange for a life sentence. He later refused to testify during the trial. Cannon was sentenced to life.

This article originally appeared on The Daytona Beach News-Journal: Deltona Xbox mass murder resentencing dispute goes to state Supreme Court