BROWN v. STATE

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Paul Alfred BROWN, Appellant, v. STATE of Florida, Appellee.

No. SC17–1001

Decided: January 29, 2018

James Vincent Viggiano, Jr., Capital Collateral Regional Counsel, Lisa Marie Bort, Maria Christine Perinetti, and Raheela Ahmed, Assistant Capital Collateral Regional Counsel, Middle Region, Temple Terrace, 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 Paul Alfred Brown's appeal of the circuit court's order denying Brown's motion filed pursuant to Florida Rule of Criminal Procedure 3.851. This Court has jurisdiction. See art. V, § 3(b)(1), Fla. Const.

Brown'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 Brown'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, Brown responded to this Court's order to show cause arguing why Hitchcock should not be dispositive in this case.

After reviewing Brown's response to the order to show cause, as well as the State's arguments in reply, we conclude that Brown is not entitled to relief. Brown was sentenced to death following a jury's recommendation for death by a vote of seven to five. Brown v. State, 565 So. 2d 304, 308 (Fla. 1990). Brown's sentence of death became final in 1990. Brown v. Florida, 498 U.S. 992 (1990). Thus, Hurst does not apply retroactively to Brown's sentence of death. See Hitchcock, 226 So. 3d at 217. Accordingly, we affirm the denial of Brown's motion.

The Court having carefully considered all arguments raised by Brown, 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 POLSTON, and LAWSON, JJ., concur. PARIENTE, J., concurs in result with an opinion. LEWIS and CANADY, JJ., concur in result. QUINCE, J., recused.

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