DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FOURTH DISTRICT STATE OF FLORIDA, Petitioner, v. JAMELL DEMONS, Respondent. No. 4D22-1874 [November 9, 2022] Petition for writ of prohibition to the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Andrew L. Siegel, Judge; L.T. Case No. 19-1872CF10A. Ashley Moody, Attorney General, Tallahassee, and Leslie T. Campbell, Senior Assistant Attorney General, West Palm Beach, for petitioner. Philip R. Horowitz of the Law Offices of Philip R. Horowitz, Miami, for respondent. LEVINE, J. In 2019, the defendant was indicted for two counts of first-degree murder with a firearm. The state filed a timely notice of intent to seek the death penalty, which included the aggravating factors the state would rely on while seeking the death penalty. In 2022, a superseding indictment added a sentencing enhancement for benefiting, promoting, or furthering the interests of a criminal gang. Since the state did not file another notice of intent to seek the death penalty after filing the superseding indictment, the trial court granted the defendant’s motion to preclude the state from seeking the death penalty. The state filed a writ of prohibition arguing the trial court exceeded its authority. We agree. We find that the state complied with its statutory obligations when it filed its notice of intent to seek the death penalty within 45 days of arraignment. The fact that the state filed a superseding indictment, requiring a second arraignment, does not vitiate the already filed and timely notice of intent. Notice is notice. The superseding indictment was clearly a continuation of the original indictment. The state did not nolle prosse the original indictment, nor did it add aggravating factors to the required notice seeking the death penalty. We find the trial court erred by precluding the state from seeking the death penalty, and thus, grant the writ of prohibition. 1 In February 2019, the defendant was indicted by a grand jury on two counts of first-degree murder with a firearm. Within 45 days of the defendant’s arraignment, the state timely filed its notice of intent to seek the death penalty in accordance with section 782.04(1)(b), Florida Statutes (2018), and Florida Rule of Criminal Procedure 3.181, listing four aggravating factors: (1) the capital felony was committed for pecuniary gain, (2) the capital felony was especially heinous, atrocious, or cruel, (3) the capital felony was a homicide and was committed in a cold, calculated, and premediated manner without any pretense of moral or legal justification, and (4) the capital felony was committed by a criminal gang member. In February 2022, the state sought to amend its notice of intent to seek the death penalty. The state sought to limit one previously listed aggravator to apply to only one victim and to add the following aggravator: that the defendant was previously convicted of another capital felony involving the use or threat of violence to the person. The trial court denied the motion. Several days later, the state filed a superseding indictment, again alleging two counts …
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