ROGER LEE CHERRY v. JULIE JONES ETC

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Supreme Court of Florida.

ROGER LEE CHERRY Petitioner(s) v. JULIE L. JONES, ETC. Respondent(s)

CASE NO.: SC16-694

Decided: March 17, 2017

Roger Lee Cherry is a prisoner under sentence of death whose death sentence for the first-degree murder of Esther Wayne became final in 1990. See Cherry v. State, 544 So. 2d 184 (Fla. 1989), cert. denied, 494 U.S. 1090 (1990). Following the United States Supreme Court's decision in Hurst v. Florida, 136 S. Ct. 616 (2016), Cherry filed a successive petition for a writ of habeas corpus wherein he challenges the validity of his death sentence. We hereby deny Cherry's petition pursuant to our holding in Asay v. State, 41 Fla. L. Weekly S646 (Fla. Dec. 22, 2016), that Hurst v. Florida does not apply retroactively to capital defendants whose sentences were final when Ring v. Arizona, 536 U.S. 584 (2002), was decided.

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED.

I concur in result because I am bound by this Court's precedent from Asay v. State, 41 Fla. L. Weekly S646 (Fla. Dec. 22, 2016), which is now final. However, as I explained in my concurring in part and dissenting in part opinion in Asay, I would not deny retroactive application of Hurst to the defendant.

A True Copy

Test:

John A. Tomasino Clerk, Supreme Court

tw

Served:

STACEY E. KIRCHER

LINDA MCDERMOTT

HON. DIANE M. MATOUSEK, CLERK

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

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