In Novel Argument, Constitutional Amendment Spurs Call for Stay of Execution

With an execution looming Thursday, attorneys for Death Row inmate Jose Antonio Jimenez say he should be spared from lethal injection because of a constitutional amendment passed last month by Florida voters.

Jimenez’s attorneys late Monday filed a petition at the Florida Supreme Court seeking a stay of execution for Jimenez, who was convicted in the 1992 murder of a 63-year-old woman in Miami-Dade County.

The Supreme Court has rejected earlier appeals from Jimenez, but his attorneys contend that a relatively non-controversial constitutional amendment approved in the Nov. 6 election should justify tossing out his death sentence — an argument that Attorney General Pam Bondi’s office disputes. Without a stay, Jimenez is scheduled to be executed at 6 p.m. Thursday at Florida State Prison.

The arguments center on part of Amendment 11, which was approved by 62 percent of voters. That part changed what is known as the “Savings Clause” of the Florida Constitution, a more than century-old provision dealing with how revisions in criminal laws should be applied to older crimes.

The Savings Clause historically has required that criminal laws in effect at the time crimes are committed govern the sentences that are imposed. But Amendment 11, which was placed on the ballot by the Constitution Revision Commission, included a change in the clause. It allowed revisions to criminal laws to affect sentences for older crimes.

Jimenez’s attorneys contend in court documents that the amendment is important in his case because of changes in Florida’s death-penalty sentencing laws in 2017. The sentencing laws had to be rewritten because of a 2016 U.S. Supreme Court decision that said the state’s death-penalty sentencing structure was unconstitutional because it gave too much power to judges, instead of juries.

With the passage of Amendment 11, Jimenez’s attorneys argue the revised laws should be applied to his case — and that they should spare him from execution. In part, the revised laws require juries to unanimously find at least one “aggravating” factor to help justify a death sentence, a tougher standard for prosecutors than was in place when Jimenez was sentenced to death.

“The demise of the Savings Clause with the voters’ approval of Amendment 11 has made the will of the people clear,” the motion for a stay said. “There should no longer be an obstacle to applying the statutory changes retrospectively in order to insure that defendants are treated equally across time. Statutory amendments enacted to reduce unduly harsh punishment or to require the state to prove more in order to justify a particular sentence are meant to apply retrospectively as shown by the approval of Amendment 11 and what the voters were told the benefits of the amendment were.”

But Bondi’s office in a filing Friday blasted the arguments about the effects of Amendment 11 on the Jimenez case. In part, the state’s attorneys said Amendment 11 gave discretion to lawmakers about retroactively applying criminal laws to old crimes and that statements about the intent of voters is “rank speculation.”

“Importantly, the changes in the Constitution brought about with the passage of Amendment 11 will not go into effect until January 8, 2019. Consequently, this issue is not ripe and cannot apply to Jimenez since his execution is set for December 13, 2018. This (Supreme) Court should deny the petition on this ground alone,” Bondi’s office said in the brief. “Even if this court were to consider this future deletion to (the section of the Constitution that includes the Savings Clause) to be relevant to Jimenez in some way, the deletion alone does not instantaneously make the 2017 change in the amended statute retroactive to Jimenez’s case.”

It was not immediately clear Tuesday when the Supreme Court might rule on the motion for a stay.

Jimenez, now 55, was convicted of killing Phyllis Minas during a burglary. Neighbors tried to enter the home through an unlocked front door after hearing Minas’ cries, but Jimenez slammed the door shut, locked it and fled by going onto a bedroom balcony, according to court documents.

–Jim Saunders, News Service of Florida