A trial court cannot treat a prosecutor’s mistaken, administrative “death penalty waiver” as a binding waiver on a new indictment, the Third District Court of Appeal held on October 14, 2026. In State v. Morris, Nos. 3D25-1610 and 3D25-1535, the court granted the State’s petition for certiorari and quashed a Miami-Dade circuit court order that would have required the case against Julio Montez Morris to proceed as a non-death-penalty case. The opinion is per curiam, by Chief Judge Scales and Judges Gordo and Gooden. It replaces an opinion filed July 15, 2026: the panel denied rehearing, rehearing en banc and certification but withdrew the earlier opinion and substituted this one. It is not final until any timely rehearing motion is decided.
The background
Morris was indicted for first-degree murder and attempted murder, and the State filed a notice of intent to seek the death penalty. A co-defendant was tried first and acquitted. During Morris’s trial, a witness and a second man were killed, and the court declared a mistrial. A grand jury then returned a superseding indictment charging Morris with three counts of first-degree murder, and the State filed new notices of intent to seek death.
The waiver
In March 2021, a deputy chief assistant in the State Attorney’s legal division was conducting routine tracking audits of death cases. Unaware of the superseding indictment, she filed an “Announcement of Death Penalty Waiver” as to Morris only. By affidavit she said it was an administrative record-keeping item that she understood to apply only to the original indictment. She was not assigned to the case or listed as counsel of record. The filing bypassed the office’s recommendation-and-review process and was never announced in open court. It went unnoticed, and penalty-phase counsel kept preparing for trial for over three years. The current prosecutor found it in June 2024, and the State moved for clarification in June 2025.
The defense argued the filing was in the present tense, named no particular indictment, and could not be undone after the 45-day period for filing a notice of intent. The trial judge acknowledged the waiver was “probably filed in error” but decided the State was “stuck” with it because “death is different,” and applied it to the new indictment and all new charges.
Irreparable harm
Certiorari requires irreparable harm, and the court found it. The order would permanently bar the State from seeking death under the superseding indictment, and if the case ended in a life sentence or an acquittal on the capital question, double jeopardy principles “may well” prevent the State from ever seeking death later. The court said it did not need to decide the precise reach of those principles to see that the State could not undo the loss on appeal.
Separation of powers
The decision to seek or waive the death penalty belongs to the state attorney, the court said, citing State v. Bloom, 497 So. 2d 2 (Fla. 1986). It wrote: “We have found no constitutional, statutory or decisional authority allowing a trial court to strike or overrule a prosecutor’s notice of intent to seek the death penalty.” The trial court “did not enforce a prosecutorial decision but supplanted one,” it said, because “no prosecutor exercising informed discretion ever decided to waive the death penalty for the Superseding Indictment.” The court also called the “gotcha” result one it has long refused to endorse.
A narrow holding
The court emphasized that its holding “should be narrowly construed,” because the case rests on “unusual and specific facts.” The case “shall proceed as a capital case until and unless the State announces a formal waiver of the death penalty on the record as to the current charges.” In a footnote, the court cited Florida Rule of Criminal Procedure 3.112(b), noting that a waiver directed to a death-penalty charge is effective only if the State affirmatively makes it on the record.
Two footnotes are worth noting. The court recognized that the Florida Supreme Court has abolished comparative proportionality review on appeal, but said a capital defendant can still argue to the penalty-phase jury that death is unwarranted because a more or equally culpable co-defendant received a waiver. And it observed that prohibition, not certiorari, is the traditional remedy when a trial court tries to block a prosecutor from pursuing the death penalty.
Read the opinion (PDF): Download the opinion (PDF)