TREASE v. STATE (2018)

We have for review Robert J. Trease's appeal of the circuit court's order denying Trease's motion filed pursuant to Florida Rule of Criminal Procedure 3.851. This Court has jurisdiction. See art. V, § 3(b)(1), Fla. Const. We withdraw the opinion issued on January 24, 2018, and substitute this opinion in its place.

Trease'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, 202 So.3d 40 (Fla. 2016), cert. denied, ––– U.S. ––––, 137 S.Ct. 2161, 198 L.Ed.2d 246 (2017). This Court stayed Trease's appeal pending the disposition of Hitchcock v. State, 226 So.3d 216 (Fla.), cert. denied, ––– U.S. ––––, 138 S.Ct. 513, 199 L.Ed.2d 396 (2017). After this Court decided Hitchcock, Trease responded to this Court's order to show cause arguing why Hitchcock should not be dispositive in this case. Then, after this Court decided State v. Silvia, 235 So.3d 349 (Fla. 2018), Trease responded to this Court's order to show cause why Silvia should not be dispositive in this case.

After reviewing Trease's responses to the orders to show cause, as well as the State's arguments in reply, we conclude that Trease's valid waiver of postconviction proceedings and counsel in 2008 precludes him from claiming a right to relief under Hurst. See Silvia, 235 So.3d at 351; Trease v. State, 41 So.3d 119 (Fla. 2010). Moreover, Trease's sentence of death became final in 2001. Trease v. State, 768 So.2d 1050, 1053 (Fla. 2000). Thus, even if Trease's postconviction waiver did not preclude him from raising a Hurst claim, Hurst would not apply retroactively to Trease's sentence of death. See Hitchcock, 226 So.3d at 217. Accordingly, we affirm the denial of relief.

It is so ordered.

PER CURIAM.

LABARGA, C.J., and PARIENTE, QUINCE, POLSTON, and LAWSON, JJ., concur. LEWIS, J., dissents. CANADY, J., recused.