FOSTER v. STATE

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Kevin Don FOSTER, Appellant, v. STATE of Florida, Appellee.

No. SC17–1141

Decided: January 29, 2018

Neal Dupree, Capital Collateral Regional Counsel, Jason Kruszka, Staff Attorney, and Scott Gavin, Assistant Capital Collateral Regional Counsel, Southern Region, Ft. Lauderdale, Florida, for Appellant Pamela Jo Bondi, Attorney General, Tallahassee, Florida, and Stephen D. Ake, Senior Assistant Attorney General, Tampa, Florida, for Appellee

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

Foster's motion sought relief pursuant to the United States Supreme Court's decision in Hurst v. Florida, 136 S.Ct. 616 (2016), and our decision on remand in Hurst v. State (Hurst), 202 So. 3d 40 (Fla. 2016), cert. denied, 137 S. Ct. 2161 (2017). This Court stayed Foster's appeal pending the disposition of Hitchcock v. State, 226 So. 3d 216 (Fla. 2017), cert. denied, 138 S. Ct. 513 (2017). After this Court decided Hitchcock, Foster responded to this Court's order to show cause arguing why Hitchcock should not be dispositive in this case.

After reviewing Foster's response to the order to show cause, as well as the State's arguments in reply, we conclude that Foster is not entitled to relief. Foster was sentenced to death following a jury's recommendation for death by a vote of nine to three, and his sentence of death became final in 2001. Foster v. State, 778 So. 2d 906, 912 (Fla. 2000). Thus, Hurst does not apply retroactively to Foster's sentence of death. See Hitchcock, 226 So. 3d at 217. Accordingly, we affirm the denial of Foster's motion.

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

I concur in result because I recognize that this Court's opinion in Hitchcock v. State, 226 So. 3d 216 (Fla. 2017), cert. denied, 138 S. Ct. 513 (2017), is now final. However, I continue to adhere to the views expressed in my dissenting opinion in Hitchcock.

PER CURIAM.

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

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