Hitchcock v. State

• Decision Date: 10 August 2017
• Docket Number: No. SC17-445.,SC17-445.
• Parties: James Ernest HITCHCOCK, Appellant, v. STATE of Florida, Appellee.
• Court: Florida Supreme Court

226 So.3d 216

James Ernest HITCHCOCK, Appellant,

v.STATE of Florida, Appellee.

No. SC17-445.

Supreme Court of Florida.

[August 10, 2017]

James Vincent Viggiano, Jr., Capital Collateral Regional Counsel, and David Dixon Hendry, James L. Driscoll, Jr., and Gregory W. Brown, Assistant Capital Collateral Regional Counsel, Middle Region, Temple Terrace, Florida, for Appellant

Pamela Jo Bondi, Attorney General, Tallahassee, Florida; and Tayo Popoola, Assistant Attorney General, Daytona Beach, Florida, for Appellee

PER CURIAM.

James Ernest Hitchcock is a prisoner under sentence of death whose sentence became final in 2000. See Hitchcock v. State, 755 So.2d 638 (Fla.), cert. denied, 531 U.S. 1040, 121 S.Ct. 633, 148 L.Ed.2d 541 (2000). Following the United States Supreme Court's decision in Hurst v. Florida, ––– U.S. ––––, 136 S.Ct. 616, 193 L.Ed.2d 504 (2016), and this Court's decision on remand in Hurst v. State, 202 So.3d 40 (Fla. 2016), cert. denied, ––– U.S. ––––, 137 S.Ct. 2161, 198 L.Ed.2d 246 (2017), Hitchcock filed a successive motion for postconviction relief pursuant to Florida Rule of Criminal Procedure 3.851, arguing that these decisions render his death sentence unconstitutional under both the United States and Florida Constitutions.¹ The circuit court summarily denied Hitchcock's motion, concluding that this Court's decision in Asay v. State, 210 So.3d 1 (Fla. 2016), petition for cert. filed, No. 16–9033 (U.S. Apr. 29, 2017), precludes relief. Hitchcock appeals the circuit court's order,² and we have jurisdiction. See art. V, § 3(b)(1), Fla. Const. We affirm because we agree with the circuit court that our decision in Asay forecloses relief.

We have consistently applied our decision in Asay, denying the retroactive application of Hurst v. Florida as interpreted in Hurst v. State to defendants whose death sentences were final when the Supreme Court decided Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002). See, e.g., Zack v. State, ––– So.3d ––––, 42 Fla. L. Weekly S656, 2017 WL 2590703 (Fla. June 15, 2017) ; Marshall v. Jones, 226 So.3d 211, 2017 WL 1739246 (Fla. May 4, 2017) ; Lambrix v. State, 217 So.3d 977 (Fla. 2017) ; Willacy v. Jones, No. SC16-497, 2017 WL 1033679 (Fla. Mar. 17, 2017) ; Bogle v. State, 213 So.3d 833 (Fla. 2017) ; Gaskin v. State, 218 So.3d 399 (Fla. 2017). Hitchcock is among those defendants whose death sentences were final before Ring, and his arguments do not compel departing from our precedent.

Although Hitchcock references various constitutional provisions as a basis for arguments that Hurst v. State should entitle him to a new sentencing proceeding, these are nothing more than arguments that Hurst v. State should be applied retroactively to his sentence, which became final prior to Ring. As such, these arguments were rejected when we decided Asay. Accordingly, we affirm the circuit court's order summarily denying Hitchcock's successive postconviction motion pursuant to Asay.

It is so ordered.

LABARGA, C.J., and QUINCE, POLSTON, and LAWSON, JJ., concur.

LEWIS, J., concurs in result with an opinion.

CANADY, J., concurs in result.

PARIENTE, J., dissents with an opinion.

LEWIS, J., concurring in result.

In my view, as it did in Asay v. State, 210 So.3d 1 (Fla. 2016), petition for cert. filed, No. 16–9033 (U.S. Apr. 29, 2017), the majority opinion incorrectly limits the retroactive application of Hurst by barring relief to even those defendants who, prior to Ring, had properly asserted, presented, and preserved challenges to the lack of jury factfinding and unanimity in Florida's capital sentencing procedure at the trial level and on direct appeal, the underlying gravamen of this entire issue. Although the United States Supreme Court's decision in Apprendi ³ became final while Hitchcock's case was on direct appeal before this Court, Hitchcock did not raise a Sixth Amendment challenge to his death sentence for the first time until after our decision, in the form of a postconviction claim, after his death sentence became final. See Hitchcock v. State, 991 So.2d 337, 344 n.6 (Fla. 2008). Therefore, I agree that he is not entitled to relief, and I concur in the result. However, I write separately to explain my disagreement with the Hurst retroactivity issue as adopted by this Court.

Many courts struggle with the "staggeringly intricate body of law governing the question whether new constitutional doctrines should be ‘retroactively’ or ‘prospectively’ applied." Witt v. State, 387 So.2d 922, 925 (Fla. 1980) (quoting Paul M. Bator et al., Hart & Wechsler's The Federal Court & the Federal System 1477 (2d ed. 1973)). This Court need not tumble down the dizzying rabbit hole of untenable line drawing; instead, the Court could simply entertain Hurst claims for those defendants who properly presented and preserved the substance of the issue, even before Ring arrived. This is consistent with the precedent of this Court. In James v. State, 615 So.2d 668, 669 (Fla. 1993), we granted relief to a defendant who had asserted at trial and on direct appeal that the jury instruction pertaining to the heinous, atrocious, or cruel aggravating circumstance was unconstitutionally vague before the United States Supreme Court ultimately reached that same conclusion in Espinosa v. Florida, 505 U.S. 1079, 112 S.Ct. 2926, 120 L.Ed.2d 854 (1992). We concluded that—despite his case becoming final before the principle of law had a case name—it would be unjust to deprive James of the benefit of the Supreme Court's holding in Espinosa after he had properly presented and preserved such a claim. James, 615 So.2d at 669. Similarly, I believe that defendants who properly preserved the substance of a Ring challenge at trial and on direct appeal prior to that decision should also be entitled to have their constitutional challenges heard.

Preservation of the issue is perhaps the most basic tenet of appellate review, see Steinhorst v. State, 412 So.2d 332, 338 (Fla. 1982) ; and this Court should be particularly cognizant of preservation issues for capital defendants. Accordingly, the fact that some defendants specifically cited the name Ring while others did not is not dispositive. Rather, the proper inquiry centers on whether a defendant preserved his or her substantive constitutional claim to which and for which Hurst applies.⁴ This preservation approach—enshrined in James—ameli orates some of the majority's concern with the effect on the administration of justice. Defendants, like Hitchcock, who did not properly preserve their constitutional challenges—through trial and direct appeal—forfeited them just as any other defendant who fails to raise and preserve a claim. However, those defendants who challenged Florida's unconstitutional sentencing scheme based on the substantive matters addressed in Hurst are entitled to consideration of that constitutional challenge.

Jurists have echoed this type of approach as a remedy to the more exacting federal Teague ⁵ standard.⁶ Federal courts have employed a similar preservation approach, and it is "one of the dominant means by which federal courts limit the disruptive effects of legal change in the context of direct review of federal criminal convictions."⁷ Regardless of the limited federal approach, scholars urge state courts to pull retroactivity off Teague's constitutional floor,⁸ which the Supreme Court expressly permitted in Danforth v. Minnesota, 552 U.S. 264, 280, 128 S.Ct. 1029, 169 L.Ed.2d 859 (2008).

This Court's adoption of the Stovall ⁹ / Linkletter ¹⁰ standard was intended to provide "more expansive retroactivity standards" than those of Teague. Johnson v. State, 904 So.2d 400, 409 (Fla. 2005). However, the Court's retroactivity decision today eschews that intention. Further, it illuminates Justice Harlan's famous critique of Linkletter:

Simply fishing one case from the stream of appellate review ... and then permitting a stream of similar cases subsequently to flow by unaffected by that new rule constitute[s] an indefensible departure from this model of judicial review.

Williams v. United States, 401 U.S. 667, 679, 91 S.Ct. 1171, 28 L.Ed.2d 404 (1971) (Harlan, J., concurring in part and dissenting in part). However, that is how the majority opinion draws its determinative, albeit arbitrary, line. As a result, Florida will treat similarly situated defendants differently—here, the difference between life and death—for potentially the simple reason of one defendant's docket delay. Vindication of these constitutional rights cannot be reduced to either fatal or fortuitous accidents of timing.¹¹

Every pre- Ring defendant has been found by a jury to have wrongfully murdered his or her victim. There may be defendants that properly preserved challenges to their unconstitutional sentences through trial and direct appeal, but this Court now limits the application of Hurst, which may result in the State wrongfully executing those defendants. It seems axiomatic that "two wrongs don't make a right"; yet, this Court essentially condones that outcome with its very limited interpretation of Hurst's retroactivity and application.

PARIENTE, J., dissenting.

Reliability is the linchpin of Eighth Amendment jurisprudence, and a death sentence imposed without a unanimous jury verdict for death is inherently unreliable. The statute under which Hitchcock was sentenced, which did not require unanimity in the jury's recommendation for death, was unconstitutional under the Sixth and Eighth Amendments. To deny Hitchcock relief when other similarly situated defendants have been granted relief amounts to a denial of due process. The Eighth Amendment and due process arguments presented here and not addressed by the majority in Asay, in addition to the Sixth Amendment right announced in Hurst v. Florida and Hurst, "create[ ] the rare situation in which finality yields to fundamental fairness in order to ensure that the constitutional rights of all capital defendants in...