Supreme Court of Florida ____________
No. SC2023-1091 ____________
JOHN F. MOSLEY, Appellant,
vs.
STATE OF FLORIDA, Appellee.
November 21, 2024
PER CURIAM.
We have twice vacated the death sentence imposed on John F.
Mosley for the first-degree murder of his infant son. Most recently,
in 2022, we vacated the death sentence imposed after Mosley’s
second penalty phase trial. Mosley v. State, 349 So. 3d 861, 863
(Fla. 2022). But we concluded that Mosley was not “entitled to a
third penalty phase trial.” Id. We “remand[ed] solely for a new
hearing pursuant to Spencer v. State, 615 So. 2d 688 (Fla. 1993),
and a new sentencing hearing.” Mosley, 349 So. 3d at 870. We did
so because we agreed with Mosley that “the trial court failed to address Mosley’s unequivocal motion to represent himself at his
Spencer hearing.” Id. at 863 (footnote omitted).
Upon remand, Mosley ironically wasted little time in seeking to
have counsel appointed, including for the new Spencer hearing. In
any event, the trial court again imposed a death sentence, which
Mosley now appeals. We have jurisdiction. See art. V, § 3(b)(1),
Fla. Const. We affirm. The two issues raised by Mosley are not
properly before this Court.
I. BACKGROUND
A jury convicted Mosley of the first-degree murders of his ten-
month-old son, Jay-Quan, and the boy’s mother, Lynda Wilkes.1
The murders took place on April 22, 2004. The facts surrounding
the murders are set forth in prior opinions. See Mosley v. State,
209 So. 3d 1248, 1254-55 (Fla. 2016); Mosley v. State, 46 So. 3d
510, 514-15 (Fla. 2009). In short, evidence—including eyewitness
testimony—presented at Mosley’s trial in 2005 established that “he
strangled . . . Wilkes; asphyxiated . . . Jay-Quan, in a garbage bag;
and disposed of both their bodies, hers by immolation, his in a
1. Mosley received a life sentence for the Wilkes murder.
-2- dumpster.” Mosley, 349 So. 3d at 863. “[T]he police were able to
recover Wilkes’s remains, which were badly burned,” but “the
baby’s body was never recovered.” Mosley, 46 So. 3d at 516.
Wilkes’s remains were so badly skeletonized that the Chief Medical
Examiner, Dr. Margarita Arruza, who conducted the autopsy,
testified that she could not pinpoint a cause of death beyond just
“call[ing] it a homicidal violence of unspecified means.” And
because the baby’s body was never recovered, Dr. Arruza
unremarkably testified that a healthy ten-month-old baby would
not live long if placed into a trash bag that is then tied shut.
In our most recent opinion, we laid out the procedural history
leading up to and including Mosley’s second penalty phase. See
Mosley, 349 So. 3d at 863-66. As noted above, although we vacated
Mosley’s death sentence, we rejected his “allegations of error at his
[second] penalty phase.” Id. at 869. One allegation of error was
Mosley’s claim “that the trial court erred in refusing to consider his
motion for an evidentiary hearing based on newly discovered
evidence.” Id. at 870. We concluded that “the trial court correctly
denied the motion because Mosley was not authorized to file it
himself while represented by counsel.” Id.
-3- After we upheld Mosley’s second penalty phase and ordered
the limited remand, Mosley’s appointed counsel filed a document in
the circuit court on January 2, 2023, seeking to “explicit[ly] . . .
adopt[]” Mosley’s previously filed (and unauthorized) claim of newly
discovered evidence. Specifically, counsel sought to adopt Mosley’s
claim that Dr. Arruza, who apparently retired in 2011 due to
dementia, was likely impaired when conducting the autopsy of
Wilkes’s body and when testifying at Mosley’s original trial in 2005.
Counsel noted that this Court had rejected this claim but not on its
merits. And counsel requested an evidentiary hearing, relying on
this Court’s decision in Farina v. State, 191 So. 3d 454 (Fla. 2016),
for the proposition that claims of newly discovered evidence should
be brought as soon as possible and not postponed until after
resentencing.
On February 3, 2023, the trial court entered a written order
summarily denying the “adopted” motion, concluding that “the
contents of [the] motion were neither newly discovered nor likely to
produce an acquittal or lesser sentence on retrial.” Among other
things, the court reasoned that the allegations did not discredit Dr.
Arruza’s testimony and that even if they did, the testimony “was of
-4- little evidentiary value.” The court explained that because of the
condition of “Wilkes’s burnt, skeletal remains,” Dr. Arruza “could
not determine the manner of death beyond homicide,” and that
“[b]ecause Jay-Quan’s body was never found,” Dr. Arruza “testified
that a ten-month[-old] baby would suffocate to death if wrapped in
a trash bag.”
On May 31, 2023, the trial court held the new Spencer
hearing, at which the defense presented the testimony of Mosley’s
mother, wife, and daughters. On July 7, 2023, the trial court held
the sentencing hearing and filed the sentencing order, in which the
court imposed a sentence of death. The sentencing order largely
tracks the previous sentencing order, with some modifications to
reflect the new Spencer hearing.
This appeal followed.
II. ANALYSIS
Mosley raises two issues in this appeal. Neither issue is
properly before this Court. Accordingly, we affirm.
“Reverse” Jury Nullification
Mosley’s first claim seeks “a new penalty phase” on the ground
that the jury in the second penalty phase purportedly ignored the
-5- judge’s instructions regarding mitigation. Mosley interprets the
completed verdict form to mean that “the jury found that [he] did
not prove any valid mitigating evidence.” And he contrasts the
verdict form with the sentencing order, in which the trial judge
found and weighed twenty-eight mitigating circumstances
(assigning “slight,” “minimal,” or “no” weight to twenty-five of them,
and “moderate weight” to the remaining three). This supposed
dichotomy, according to Mosley, amounts to something Mosley
refers to as “reverse” jury nullification.
Mosley presented a version of this claim to the trial court after
the jury returned its verdict, and the issue was argued at a hearing.
But Mosley did not raise the issue on appeal of the second penalty
phase. In other words, he abandoned the issue on appeal. Cf.
Valentine v. State, 339 So. 3d 311, 314 n.5 (Fla. 2022) (holding that
defendant “abandoned any argument as to the denial of [a] claim”
when defendant “[o]n appeal . . . made no argument specifically
challenging that ruling”).
Putting aside that the sentencing order reflects that some
jurors found that certain mitigating circumstances existed, we do
not address this barred claim. We thus need not speculate
-6- whether, for example, the jurors concluded that Mosley failed to
establish that he “graduated from High School,” or whether they
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Supreme Court of Florida ____________
No. SC2023-1091 ____________
JOHN F. MOSLEY, Appellant,
vs.
STATE OF FLORIDA, Appellee.
November 21, 2024
PER CURIAM.
We have twice vacated the death sentence imposed on John F.
Mosley for the first-degree murder of his infant son. Most recently,
in 2022, we vacated the death sentence imposed after Mosley’s
second penalty phase trial. Mosley v. State, 349 So. 3d 861, 863
(Fla. 2022). But we concluded that Mosley was not “entitled to a
third penalty phase trial.” Id. We “remand[ed] solely for a new
hearing pursuant to Spencer v. State, 615 So. 2d 688 (Fla. 1993),
and a new sentencing hearing.” Mosley, 349 So. 3d at 870. We did
so because we agreed with Mosley that “the trial court failed to address Mosley’s unequivocal motion to represent himself at his
Spencer hearing.” Id. at 863 (footnote omitted).
Upon remand, Mosley ironically wasted little time in seeking to
have counsel appointed, including for the new Spencer hearing. In
any event, the trial court again imposed a death sentence, which
Mosley now appeals. We have jurisdiction. See art. V, § 3(b)(1),
Fla. Const. We affirm. The two issues raised by Mosley are not
properly before this Court.
I. BACKGROUND
A jury convicted Mosley of the first-degree murders of his ten-
month-old son, Jay-Quan, and the boy’s mother, Lynda Wilkes.1
The murders took place on April 22, 2004. The facts surrounding
the murders are set forth in prior opinions. See Mosley v. State,
209 So. 3d 1248, 1254-55 (Fla. 2016); Mosley v. State, 46 So. 3d
510, 514-15 (Fla. 2009). In short, evidence—including eyewitness
testimony—presented at Mosley’s trial in 2005 established that “he
strangled . . . Wilkes; asphyxiated . . . Jay-Quan, in a garbage bag;
and disposed of both their bodies, hers by immolation, his in a
1. Mosley received a life sentence for the Wilkes murder.
-2- dumpster.” Mosley, 349 So. 3d at 863. “[T]he police were able to
recover Wilkes’s remains, which were badly burned,” but “the
baby’s body was never recovered.” Mosley, 46 So. 3d at 516.
Wilkes’s remains were so badly skeletonized that the Chief Medical
Examiner, Dr. Margarita Arruza, who conducted the autopsy,
testified that she could not pinpoint a cause of death beyond just
“call[ing] it a homicidal violence of unspecified means.” And
because the baby’s body was never recovered, Dr. Arruza
unremarkably testified that a healthy ten-month-old baby would
not live long if placed into a trash bag that is then tied shut.
In our most recent opinion, we laid out the procedural history
leading up to and including Mosley’s second penalty phase. See
Mosley, 349 So. 3d at 863-66. As noted above, although we vacated
Mosley’s death sentence, we rejected his “allegations of error at his
[second] penalty phase.” Id. at 869. One allegation of error was
Mosley’s claim “that the trial court erred in refusing to consider his
motion for an evidentiary hearing based on newly discovered
evidence.” Id. at 870. We concluded that “the trial court correctly
denied the motion because Mosley was not authorized to file it
himself while represented by counsel.” Id.
-3- After we upheld Mosley’s second penalty phase and ordered
the limited remand, Mosley’s appointed counsel filed a document in
the circuit court on January 2, 2023, seeking to “explicit[ly] . . .
adopt[]” Mosley’s previously filed (and unauthorized) claim of newly
discovered evidence. Specifically, counsel sought to adopt Mosley’s
claim that Dr. Arruza, who apparently retired in 2011 due to
dementia, was likely impaired when conducting the autopsy of
Wilkes’s body and when testifying at Mosley’s original trial in 2005.
Counsel noted that this Court had rejected this claim but not on its
merits. And counsel requested an evidentiary hearing, relying on
this Court’s decision in Farina v. State, 191 So. 3d 454 (Fla. 2016),
for the proposition that claims of newly discovered evidence should
be brought as soon as possible and not postponed until after
resentencing.
On February 3, 2023, the trial court entered a written order
summarily denying the “adopted” motion, concluding that “the
contents of [the] motion were neither newly discovered nor likely to
produce an acquittal or lesser sentence on retrial.” Among other
things, the court reasoned that the allegations did not discredit Dr.
Arruza’s testimony and that even if they did, the testimony “was of
-4- little evidentiary value.” The court explained that because of the
condition of “Wilkes’s burnt, skeletal remains,” Dr. Arruza “could
not determine the manner of death beyond homicide,” and that
“[b]ecause Jay-Quan’s body was never found,” Dr. Arruza “testified
that a ten-month[-old] baby would suffocate to death if wrapped in
a trash bag.”
On May 31, 2023, the trial court held the new Spencer
hearing, at which the defense presented the testimony of Mosley’s
mother, wife, and daughters. On July 7, 2023, the trial court held
the sentencing hearing and filed the sentencing order, in which the
court imposed a sentence of death. The sentencing order largely
tracks the previous sentencing order, with some modifications to
reflect the new Spencer hearing.
This appeal followed.
II. ANALYSIS
Mosley raises two issues in this appeal. Neither issue is
properly before this Court. Accordingly, we affirm.
“Reverse” Jury Nullification
Mosley’s first claim seeks “a new penalty phase” on the ground
that the jury in the second penalty phase purportedly ignored the
-5- judge’s instructions regarding mitigation. Mosley interprets the
completed verdict form to mean that “the jury found that [he] did
not prove any valid mitigating evidence.” And he contrasts the
verdict form with the sentencing order, in which the trial judge
found and weighed twenty-eight mitigating circumstances
(assigning “slight,” “minimal,” or “no” weight to twenty-five of them,
and “moderate weight” to the remaining three). This supposed
dichotomy, according to Mosley, amounts to something Mosley
refers to as “reverse” jury nullification.
Mosley presented a version of this claim to the trial court after
the jury returned its verdict, and the issue was argued at a hearing.
But Mosley did not raise the issue on appeal of the second penalty
phase. In other words, he abandoned the issue on appeal. Cf.
Valentine v. State, 339 So. 3d 311, 314 n.5 (Fla. 2022) (holding that
defendant “abandoned any argument as to the denial of [a] claim”
when defendant “[o]n appeal . . . made no argument specifically
challenging that ruling”).
Putting aside that the sentencing order reflects that some
jurors found that certain mitigating circumstances existed, we do
not address this barred claim. We thus need not speculate
-6- whether, for example, the jurors concluded that Mosley failed to
establish that he “graduated from High School,” or whether they
instead concluded that Mosley’s high school diploma was simply
not mitigating—i.e., that it was not a circumstance that supported a
life sentence.
The time for Mosley to bring this penalty phase claim was on
direct appeal of the death sentence imposed after the second
penalty phase. In that appellate proceeding, we upheld the second
penalty phase against Mosley’s attack—an attack that did not
include this claim. Because this issue should have been raised in
that proceeding, the issue is now barred. Cf. Covington v. State,
348 So. 3d 456, 471 (Fla. 2022) (holding that a claim that “should
have been raised on direct appeal” was “procedurally barred” (citing
Dailey v. State, 283 So. 3d 782, 793 (Fla. 2019))).
Newly Discovered Evidence
Mosley next argues that the trial court erred in denying an
evidentiary hearing regarding his claim of newly discovered evidence
of the medical examiner’s alleged impairment. This issue, in which
Mosley seeks a new guilt phase, similarly exceeds the scope of this
Court’s remand. In any event, even assuming counsel properly
-7- “adopted” the unauthorized motion that Mosley filed years earlier,
the untimely appeal of the denial of the adopted motion warrants
dismissal.
Under Farina—on which Mosley and counsel relied in
requesting an evidentiary hearing prior to “the conclusion of his
resentencing,” 191 So. 3d at 456—the trial court’s order denying
relief here was a final order. See id. at 454-55 (treating “as an
appeal from a final order” the defendant’s petition that sought
“review of a trial court order that dismissed his motion for a new
trial based on newly discovered evidence”). The trial court issued
that final order on February 3, 2023. But Mosley did not appeal
that final order until August 3, 2023, when he appealed the new
sentencing order. Mosley’s appeal of the final order denying relief
was hardly “within 30 days of the rendition of the order.” Fla. R.
Crim. P. 3.851(f)(8); Fla. R. Crim. P. 3.850(k). Because Mosley’s
appeal of that final order is plainly untimely, we dismiss it.
Even if Mosley’s claim had been presented to us in a timely
manner, we would unhesitatingly reject it. To succeed on his claim
of newly discovered evidence, Mosley “must establish two prongs”:
first, “that the evidence was not known by the trial court, the party,
-8- or counsel at the time of trial and it could not have been discovered
through due diligence at the time of trial”; and, second, “that the
newly discovered evidence is of such a nature that it would
probably produce an acquittal on retrial.” Sheppard v. State, 338
So. 3d 803, 825 (Fla. 2022) (citing Jones v. State, 709 So. 2d 512,
521 (Fla. 1998)). Putting aside the fact that, as the trial court
determined, Mosley’s claim was “based upon correspondence and
filings that predate the murders” and that could have been
presented at trial “to impeach Dr. Arruza,” Mosley cannot possibly
establish the second prong. Whether or not Dr. Arruza was
impaired, her testimony—as outlined above—regarding Wilkes’s
skeletonized remains and the likelihood that a baby would die if tied
up in a garbage bag was of such little evidentiary value that it had
no impact on the outcome of Mosley’s guilt phase.
III. CONCLUSION
For these reasons, we affirm Mosley’s death sentence.
It is so ordered.
MUÑIZ, C.J., and CANADY, LABARGA, COURIEL, GROSSHANS, FRANCIS, and SASSO, JJ., concur.
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED.
-9- An Appeal from the Circuit Court in and for Duval County, Michael R. Weatherby, Judge Case No. 162004CF006675AXXXMA
Matthew S. Metz, Public Defender, and George D.E. Burden, Assistant Public Defender, Seventh Judicial Circuit, Daytona Beach, Florida,
for Appellant
Ashley Moody, Attorney General, Tallahassee, Florida, and Lisa-Marie Lerner, Assistant Attorney General, West Palm Beach, Florida,
for Appellee
- 10 -