DARRYL BRIAN BARWICK v. STATE OF FLORIDA

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Supreme Court of Florida.

DARRYL BRIAN BARWICK, Appellant, v. STATE OF FLORIDA, Appellee.

No. SC17-2057

Decided: February 28, 2018

Linda McDermott of McClain & McDermott, P.A., Estero, Florida, for Appellant Pamela Jo Bondi, Attorney General, and Lisa A. Hopkins, Assistant Attorney General, Tallahassee, Florida, for Appellee

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

Barwick'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). After this Court decided Hitchcock v. State, 226 So. 3d 216 (Fla.), cert. denied, 138 S. Ct. 513 (2017), Barwick responded to this Court's order to show cause arguing why Hitchcock should not be dispositive in this case.

After reviewing Barwick's response to the order to show cause, as well as the State's arguments in reply, we conclude that Barwick is not entitled to relief. Barwick was sentenced to death following a jury's unanimous recommendation for death. Barwick v. State, 660 So. 2d 685, 689 (Fla. 1995). Barwick's sentence of death became final in 1996. Barwick v. Florida, 516 U.S. 1097 (1996). Thus, Hurst does not apply retroactively to Barwick's sentence of death. See Hitchcock, 226 So. 3d at 217. Accordingly, we affirm the denial of Barwick's motion.

The Court having carefully considered all arguments raised by Barwick, 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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