KEVIN DON FOSTER, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Kevin Don Foster appealed the denial of his motion for relief under Hurst v. Florida, which held that Florida's death penalty sentencing scheme violated the Sixth Amendment. The Florida Supreme Court affirmed the denial because Foster's death sentence became final in 2001, before Hurst was decided, and therefore Hurst does not apply retroactively to his case.
Hurst does not apply retroactively to Foster's sentence of death because his sentence became final in 2001, prior to the Hurst decision. Therefore, Foster is not entitled to relief, and the circuit court's denial of his motion was proper.
[1] The Supreme Court's decision in Hurst v. …
[2] A motion for postconviction relief based on Hurst v. …
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Join FLexlaw to unlock all legal intelligence“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.”
Establishes the critical timing fact that Foster's sentence became final before Hurst was decided
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Join FLexlaw to unlock all legal intelligenceFoster was sentenced to death following a jury's recommendation for death by a vote of nine to three. His sentence of death became final in 2001. Fost…
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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, — U.S.-, 136 S.Ct. 616, 193 L.Ed.2d 504 (2016), and our decision on remand in Hurst v. State (Hurst), 202 So.3d 40 (Fla. 2016), cert. denied, — U.S. -, 137 S.Ct. 2161, 198 L.Ed.2d 246 (2017). This Court stayed Foster’s appeal pending the disposition of Hitchcock v. State, 226 So.3d 216 (Fla. 2017), cert. denied, — U.S. -, 138 S.Ct. 513, 199 L.Ed.2d 396 (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 rear-gument will be stricken. It is so ordered.
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.
concurring in result.
I concur in result because I recognize that this Court’s opinion in' Hitchcock v. State, 226 So.3d 216 (Fla. 2017), cert. denied, — U.S. —- 138 S.Ct. 513, 199 L.Ed.2d 396 (2017), is now final. However, I continue to adhere to the views expressed in my dissenting opinion in'Hitchcock.
PARIENTE, J.,
concurring in result.
I concur in result because I recognize that this Court’s opinion in' Hitchcock v. State, 226 So. 3d 216 (Fla. 2017), cert. denied, — U.S. —- 138 S.Ct. 513, 199 L.Ed.2d 396 (2017), is now final. However, I continue to adhere to the views expressed in my dissenting opinion in'Hitchcock.
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Cited By
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Foster v. State, 258 So. 3d 1248 (Fla. 2018)…36 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002). Because Foster's conviction and sentence became final before the United States Supreme Court decided Ring , the trial court denied relief, and Foster appealed to this Court. See Foster v. State , 235 So. 3d 294, 295 (Fla. 2018). However, we stayed Foster's appeal pending our decision in Hitchcock v. State , 226 So. 3d 216 (Fla. 2017). We reiterated in Hitchcock that Hurst is not to be retroactively applied to cases where the defendant's death sentence beca…
Authorities Cited
- Hurst v. Florida., 136 S. Ct. 616 (U.S. 2016)
- Hurst v. State, 202 So. 3d 40 (Fla. 2016)
- Florida v. Hurst., 137 S. Ct. 2161 (U.S. 2017)
- Hitchcock v. State, 226 So. 3d 216 (Fla. 2017)
- Rainey v. Dist. Attorney Off. of Philadelphia., 138 S. Ct. 513 (U.S. 2017)
- Ward v. Neal, 137 S. Ct. 2161 (U.S. 2017)
- Boone v. Lorie Davis, 137 S. Ct. 2163 (U.S. 2017)
- Loud v. Lorie Davis, 138 S. Ct. 513 (U.S. 2017)
- Allen v. United States, 138 S. Ct. 513 (U.S. 2017)
- Foster v. State, 778 So. 2d 906 (Fla. 2000)