LIGHTBOURNE v. STATE (2018)

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

Lightbourne'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). Lightbourne responded to this Court's order to show cause arguing why this Court's decisions in Lightbourne v. State, 235 So.3d 285 (Fla. 2018), petition for cert. filed, No. 18-5012 (U.S. June 28, 2018), and Hitchcock v. State, 226 So.3d 216 (Fla.), cert. denied, ––– U.S. ––––, 138 S.Ct. 513, 199 L.Ed.2d 396 (2017), should not be dispositive in this case.

After reviewing Lightbourne's response to the order to show cause, as well as the State's arguments in reply, we conclude that our prior denial of Lightbourne's appeal from the circuit court's denial of his successive motion for postconviction relief raising similar claims is a procedural bar to the claims at issue in this appeal. All of Lightbourne's claims depend upon the retroactive application of Hurst, to which we have held he is not entitled. See Lightbourne, 235 So.3d at 286; Hitchcock, 226 So.3d at 217. Accordingly, we affirm the denial of Lightbourne's motion.

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

I agree with the per curiam opinion that we have formerly denied Lightbourne's claims to Hurst ¹ relief pursuant to Hitchcock,² which, of course, is now final. Nevertheless, as I have expressed several times, I would apply Hurst retroactively to Lightbourne's case. See Hitchcock, 226 So.3d at 221-23 (Pariente, J., dissenting). Applying Hurst to Lightbourne's case, in which the jury's vote is unclear, I would grant a new penalty phase because the State cannot prove that the Hurst error is harmless beyond a reasonable doubt.

FOOTNOTES

1.   Hurst v. State (Hurst ), 202 So.3d 40 (Fla. 2016), cert. denied, ––– U.S. ––––, 137 S.Ct. 2161, 198 L.Ed.2d 246 (2017); see Hurst v. Florida, ––– U.S. ––––, 136 S.Ct. 616, 193 L.Ed.2d 504 (2016).

2.   Hitchcock v. State, 226 So.3d 216 (Fla.), cert. denied, ––– U.S. ––––, 138 S.Ct. 513, 199 L.Ed.2d 396 (2017).

PER CURIAM.

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