CAVE v. STATE (2020)

Alphonso Cave appeals an order summarily denying his successive motion for postconviction relief, which was filed under Florida Rule of Criminal Procedure 3.851.¹ We affirm the denial of relief.

In 1982, Cave was convicted of the first-degree murder of Frances Slater, robbery with a firearm, and kidnapping. See Cave v. State, 476 So. 2d 180, 182 (Fla. 1985). He was sentenced to death for Ms. Slater's murder, and on direct appeal, we affirmed Cave's convictions and sentences. Id. at 182-83. The sentence was later vacated by the federal district court based on ineffective assistance of trial counsel during the penalty phase, and this ruling was affirmed by the federal circuit court. See Cave v. Singletary, 971 F.2d 1513, 1514 (11th Cir. 1992). Cave was given a second sentencing proceeding before a jury. The jury recommended death by a ten-to-two vote, and the court again imposed a sentence of death. See Cave v. State, 660 So. 2d 705, 706 (Fla. 1995). This Court vacated the sentence due to a procedural error in the trial court's disposition of Cave's motion for disqualification of the judge. See id. at 708.

Cave was given a third sentencing proceeding before a jury, and the jury recommended death by an eleven-to-one vote. Cave v. State, 727 So. 2d 227, 228 (Fla. 1998). On direct appeal, this Court affirmed Cave's death sentence. Id. at 232. His sentence of death became final in 1999, when the United States Supreme Court denied certiorari review. Cave v. Florida, 528 U.S. 841, 120 S.Ct. 108, 145 L.Ed.2d 91 (1999). We also affirmed the denial of Cave's initial postconviction motion. Cave v. State, 899 So. 2d 1042, 1045 (Fla. 2005).

In 2017, Cave filed a successive postconviction motion claiming that he is intellectually disabled and entitled to relief based on Hall v. Florida, 572 U.S. 701, 134 S.Ct. 1986, 188 L.Ed.2d 1007 (2014), and Moore v. Texas, ––– U.S. ––––, 137 S. Ct. 1039, 197 L.Ed.2d 416 (2017); and a claim seeking relief under Hurst v. Florida, ––– U.S. ––––, 136 S. Ct. 616, 193 L.Ed.2d 504 (2016), and Hurst v. State, 202 So. 3d 40 (Fla. 2016). In September 2018, the circuit court entered an order summarily denying Cave's successive postconviction motion finding that his intellectual disability claim is time-barred and that Hurst does not apply retroactively to Cave's case.

First, Cave is not entitled to postconviction relief based on his intellectual disability claim. As this Court stated in Phillips v. State, ––– So.3d ––––, 2020 WL 2563476 (Fla. May 21, 2020), Hall does not apply retroactively. Accordingly, we affirm the postconviction court's summary denial of Cave's intellectual disability claim.

Second, Cave is not entitled to Hurst relief. See State v. Poole, 292 So.3d 694 (Fla. 2020), clarified, 292 So.3d 659 (Fla. 2020) (“The jury in Poole's case unanimously found that, during the course of the first-degree murder of Noah Scott, Poole committed the crimes of attempted first-degree murder of White, sexual battery of White, armed burglary, and armed robbery. Under this Court's longstanding precedent interpreting Ring v. Arizona [536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002)] and under a correct understanding of Hurst v. Florida, this satisfied the requirement that a jury unanimously find a statutory aggravating circumstance beyond a reasonable doubt.”); Cave, 476 So. 2d at 182 (“Cave was convicted of one count each of first-degree murder, robbery with a firearm, and kidnapping.”).

Accordingly, we affirm the postconviction court's summary denial of Cave's successive postconviction motion.

It is so ordered.

This Court has consistently affirmed the denial of relief in cases where the defendant failed to timely raise an intellectual disability claim based on Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002). See Bowles v. State, 276 So. 3d 791, 794-95 (Fla. 2019); Harvey v. State, 260 So. 3d 906, 907 (Fla. 2018); Blanco v. State, 249 So. 3d 536, 537 (Fla. 2018); Rodriguez v. State, 250 So. 3d 616, 616 (Fla. 2016). Similarly, Cave did not timely seek relief under Atkins, and I agree with the majority that he is not entitled to relief.

However, I strongly disagree with the majority's reliance on its decision in Phillips v. State, ––– So.3d ––––, ––––, 2020 WL 2563476 (Fla. May 21, 2020) (holding that Hall v. Florida, 572 U.S. 701, 134 S.Ct. 1986, 188 L.Ed.2d 1007 (2014), is not to be retroactively applied, and receding from Walls v. State, 213 So. 3d 340 (Fla. 2016)). Consequently, I can only concur in the result.

Moreover, I agree that Cave, whose death sentence became final in 1999, is not entitled to the retroactive application of Hurst v. Florida, ––– U.S. ––––, 136 S. Ct. 616, 193 L.Ed.2d 504 (2016), as interpreted in Hurst v. State, 202 So. 3d 40 (Fla. 2016). See Hitchcock v. State, 226 So. 3d 216, 217 (Fla. 2017) (holding that Hurst v. Florida as interpreted in Hurst v. State is not retroactive to defendants whose death sentences became final before the United States Supreme Court decided Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002)).

However, because the majority relies on State v. Poole, 292 So.3d 694 (Fla. 2020), a wrongfully decided opinion to which I strenuously dissented, I can concur only in the result on this issue as well.

FOOTNOTES

1.   We have jurisdiction. See art. V, § 3(b)(1), Fla. Const.

PER CURIAM.

CANADY, C.J., and POLSTON, LAWSON, and MUÑIZ, JJ., concur. LABARGA, J., concurs in result with an opinion. COURIEL, J., did not participate.