SEBRING — Attorneys and the 10th Judicial District have been working for more than a year and a half to hold a re-sentencing hearing for Joshua Lee Altersberger.
He may still have one — it’s scheduled for February 2020 — but a pending Florida Supreme Court case might render his chance at a re-sentencing null and void, according to Assistant State Attorney Steve Houchin. He has a status conference scheduled for Aug. 23 at 8:30 a.m. at the Polk County Courthouse, court room 9B.
In June, law.com reported on the case of convicted murderer Duane Eugene Owen, where Owen’s lawyer, James L. Driscoll, argued that retroactive re-sentencing hearings for those sentenced after 2002 should be available to older cases.
Owen, 58, has spent more than three decades on death row after being convicted of the 1984 rape and murder of Georgianna Worden in Palm Beach County, law.com reports.
This all comes as a revamped Florida Supreme Court is exploring whether to reverse course on decisions that allowed dozens of convicted murderers to have their death sentences reconsidered.
Law.com states that Gov. Ron DeSantis reshaped the Supreme Court early this year, transforming a widely-believed liberal-leaning majority into a conservative one.
At issue is not only whether or not the Florida Supreme Court’s partial retroactivity formula violates the Eighth and Fourteenth Amendments to the U.S. Constitution by limiting the class of condemned prisoners obtaining a life-or-death jury determination, under Hurst v. Florida (2016).
Also, another question is whether or not the Supreme Court’s partial retroactive formula employed for Hurst violations in Florida also violate the Supremacy Clause of the United States Constitution in light of Montgomery v. Louisiana (2016).
Altersberger, 31, had pleaded guilty to a charge of capital murder in the slaying of Florida Highway Patrol Trooper Nick Sottile on Jan. 12, 2007.
After his guilty plea, a jury voted 9-3 to impose the death penalty, and was sentenced.
However, a January 2016 ruling by the U.S. Supreme Court declared in Hurst v. Florida that a unanimous verdict is required for a death penalty.
Thus, the Supreme Court ruled that the Florida death penalty process was unconstitutional by allowing judges, and not jurors, to decide if prosecutors had proven that any aggravating factors supported the death penalty.
As a result, the Florida Supreme Court overturned the death penalty sentence and ordered a new re-sentencing hearing on several such death penalty cases affirmed by the Florida Supreme Court after June 2002.
Florida Supreme Court said the less-than-unanimous ruling left uncertainty as to whether the jury properly weighed aggravating and mitigating circumstances in reaching the decision.
When examining the vote and whether it gave sufficient uncertainty to overturn a death penalty, the court wrote that although the jury recommended death by a vote of 9 to 3, the court could not determine whether or not the jury unanimously found that the aggravating factors that favor the death penalty outweighed the mitigation factors to not impose the death penalty.
“We can only determine that the jury did not unanimously recommend a sentence of death,” the court wrote.
Sottile, a lieutenant with the Florida Highway Patrol, was killed when he made a traffic stop on northbound U.S. 27, outside Lake Placid. Authorities said that when Sottile approached the vehicle that Altersberger was driving, Altersberger pretended to be compliant. But when Sottile took his hands off his gun, Altersberger pulled out a gun and shot Sottile.