BYRD v. STATE (2018)

We have for review Milford Wade Byrd's appeal of the circuit court's order denying Byrd's motion filed pursuant to Florida Rule of Criminal Procedure 3.851. This Court has jurisdiction. See art. V, § 3(b)(1), Fla. Const.

Byrd's motion sought relief pursuant to the United States Supreme Court's decision in Hurst v. Florida, ––– U.S. ––––, 136 S.Ct. 616, 193 L.Ed.2d 504 (2016), and our decision on remand in Hurst v. State (Hurst ), 202 So.3d 40 (Fla. 2016), cert. denied, ––– U.S. ––––, 137 S.Ct. 2161, 198 L.Ed.2d 246 (2017). After this Court decided Hitchcock v. State, 226 So.3d 216 (Fla.), cert. denied, ––– U.S. ––––, 138 S.Ct. 513, 199 L.Ed.2d 396 (2017), Byrd responded to this Court's order to show cause arguing why Hitchcock should not be dispositive in this case.

After reviewing Byrd's response to the order to show cause, as well as the State's arguments in reply, we conclude that Byrd is not entitled to relief. Byrd was sentenced to death following a jury's recommendation for death. Byrd v. State, 481 So.2d 468, 471 (Fla. 1985).¹ Byrd's sentence of death became final in 1986. Byrd v. Florida, 476 U.S. 1153, 106 S.Ct. 2261, 90 L.Ed.2d 705 (1986). Thus, Hurst does not apply retroactively to Byrd's sentence of death. See Hitchcock, 226 So.3d at 217. Accordingly, we affirm the denial of Byrd's motion.

The Court having carefully considered all arguments raised by Byrd, we caution that any rehearing motion containing reargument will be stricken. It is so ordered.

I concur in result because I recognize that this Court's opinion in Hitchcock v. State, 226 So.3d 216 (Fla. 2017), cert. denied, ––– U.S. ––––, 138 S.Ct. 513, 199 L.Ed.2d 396 (2017), is now final. However, I continue to adhere to the views expressed in my dissenting opinion in Hitchcock.

FOOTNOTES

1.   The jury's vote to recommend death is unknown. This Court's opinion on direct appeal merely states that “[t]he jury returned an advisory recommendation of the death penalty.” Byrd, 481 So.2d at 471.

PER CURIAM.

LABARGA, C.J., and POLSTON and LAWSON, JJ., concur. PARIENTE, J., concurs in result with an opinion. LEWIS and CANADY, JJ., concur in result. QUINCE, J. recused.