ALSTON v. STATE (2018)

We have for review Pressley Bernard Alston's appeal of the circuit court's order denying Alston's motion filed pursuant to Florida Rule of Criminal Procedure 3.851 and Alston's petition for a writ of habeas corpus. We have jurisdiction. See art. V, § 3(b)(1), (9) Fla. Const. We withdraw the opinion issued on January 22, 2018, and substitute this opinion in its place.

Alston seeks 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 Alston's appeal and consideration of his habeas petition 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, Alston responded to this Court's order to show cause arguing why Hitchcock should not be dispositive in both cases. Then, after this Court decided State v. Silvia, 235 So.3d 349 (Fla. 2018), Alston responded to this Court's order to show cause why Silvia should not be dispositive in both cases.

After reviewing Alston's responses to the orders to show cause, as well as the State's arguments in reply, we conclude that Alston's valid waiver of postconviction proceedings and counsel in 2003 precludes him from claiming a right to relief under Hurst. See Silvia, 235 So.3d 349; Alston v. State, 894 So.2d 46 (Fla. 2004). Moreover, Alston's sentence of death became final in 1999. Alston v. State, 723 So.2d 148 (Fla. 1998). Thus, even if Alston's postconviction waiver did not preclude him from raising a Hurst claim, Hurst would not apply retroactively to Alston's sentence of death. See Hitchcock, 226 So.3d at 217. Accordingly, we affirm the circuit court's denial of relief and deny Alston's habeas petition.

It is so ordered.

I would base the denial of relief to Alston on my view that Hurst should not be given retroactive application. See Mosley v. State, 209 So.3d 1248, 1285–91 (Fla. 2016) (Canady, J., concurring in part and dissenting in part).

PER CURIAM.

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