Supreme Court of Florida ____________
No. SC2026-0880 ____________
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 On December 10, 1991, Spencer confronted Karen about money which she had withdrawn from the business account.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.
-2- 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
-3- 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”).
-4- 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.
-5- 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
-6- 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.
-7- “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.
-8- 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. 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.
-9- 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
- 10 - 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).
- 11 - 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).
- 12 - 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
- 13 - 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).
- 14 - 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
- 15 - 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
- 16 - 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
- 17 - 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.
- 18 - 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
- 19 - Meacham, Special Counsel, Assistant Attorney General, Tampa, Florida,
for Appellee
- 20 -