JOHNSTON v. STATE

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Ray Lamar JOHNSTON, Appellant, v. STATE of Florida, Appellee.

No. SC17–1678

Decided: April 05, 2018

James Vincent Viggiano, Jr., Capital Collateral Regional Counsel, James L. Driscoll Jr., David Dixon Hendry and Gregory W. Brown, Assistant Capital Collateral Regional Counsel, Middle Region, Temple Terrace, Florida, for Appellant Pamela Jo Bondi, Attorney General, Tallahassee, Florida, and Timothy A. Freeland, Senior Assistant Attorney General, Tampa, Florida, for Appellee

Ray Lamar Johnston appeals an order summarily denying his first successive postconviction motion filed under Florida Rule of Criminal Procedure 3.851.1

The underlying facts of this case were described in this Court's opinion on direct appeal. Johnston v. State, 841 So. 2d 349, 351–55 (Fla. 2002). Johnston was convicted of the first-degree murder of Leanne Coryell, kidnapping, robbery, sexual battery, and burglary of a conveyance with assault. Id. at 351. Following a unanimous jury recommendation for death, the trial court sentenced Johnston to death. Id. at 355.

In this successive postconviction motion, we affirm the denial of Johnston's claim that he is entitled to relief pursuant to Hurst v. Florida, 136 S. Ct. 616 (2016), and Hurst v. State, 202 So. 3d 40 (Fla. 2016), cert. denied, 137 S. Ct. 2161 (2017). Johnston received a unanimous jury recommendation of death and, therefore, the Hurst error in this case is harmless beyond a reasonable doubt. See Davis v. State, 207 So. 3d 142, 175 (Fla. 2016). Additionally, we affirm the denial of Johnston's Hurst-induced Caldwell 2 claim. See Reynolds v. State, No. SC17–793, slip op. at 26–36 (Fla. Apr. 5, 2018).

Accordingly, we affirm the denial of postconviction relief.

It is so ordered.

I cannot agree with the majority's finding that the Hurst error was harmless beyond a reasonable doubt. As I have stated previously, “[b]ecause Hurst requires ‘a jury, not a judge, to find each fact necessary to impose a sentence of death,’ the error cannot be harmless where such a factual determination was not made.” Hall v. State, 212 So. 3d 1001, 1036–37 (Fla. 2017) (Quince, J., concurring in part and dissenting in part) (citation omitted) (quoting Hurst v. Florida, 136 S. Ct. 616, 619 (2016) ); see also Truehill v. State, 211 So. 3d 930, 961 (Fla.) (Quince, J., concurring in part and dissenting in part), cert. denied, 138 S. Ct. 3 (2017). The jury in this case did not make all the factual findings that Hurst requires a jury to make in order to impose all the aggravators at issue in this case. Therefore, I dissent.

FOOTNOTES

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

2.   Caldwell v. Mississippi, 472 U.S. 320 (1985).

PER CURIAM.

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

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