GARY RICHARD WHITTON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE.
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The court held that the defendant is not entitled to relief because the Hurst decision does not apply retroactively to his death sentence, which became final in 1995.
[1] The United States Supreme Court's decision in Hurst v. …
[2] A motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.851 is subject to precedent established in subsequent controlling cases.
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Join FLexlaw to unlock all legal intelligenceGary Richard Whitton appealed the denial of his motion for post-conviction relief, which was based on the Supreme Court's decision in Hurst v. Florida…
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We have for review Gary Richard Whitton's appeal of the circuit court's order denying Whitton's motion filed pursuant to Florida Rule of Criminal Procedure 3.851. This Court has jurisdiction. See art. V, § 3(b)(1), Fla. Const.
Whitton'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 Whitton'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, Whitton responded to this Court's order to show *725cause arguing why Hitchcock should not be dispositive in this case.
After reviewing Whitton's response to the order to show cause, as well as the State's arguments in reply, we conclude that Whitton is not entitled to relief. Whitton was sentenced to death following a jury's unanimous recommendation for death. Whitton v. State, 649 So.2d 861, 864 (Fla. 1994). Whitton's sentence of death became final in 1995. Whitton v. Florida, 516 U.S. 832, 116 S.Ct. 106, 133 L.Ed.2d 59 (1995). Thus, Hurst does not apply retroactively to Whitton's sentence of death. See Hitchcock, 226 So.3d at 217. Accordingly, we affirm the denial of Whitton's motion.
The Court having carefully considered all arguments raised by Whitton, we caution that any rehearing motion containing reargument 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.
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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Citator
Cited By
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Whitton v. State (Fla. 2026)…Whitton made several unsuccessful attempts to obtain postconviction relief in state court. See Whitton II, 161 So. 3d 314 (affirming the denial of Whitton's initial motion for postconviction relief and denying his habeas petition); Whitton v. State, 238 So. 3d 724 (Fla. 2018) (affirming the denial of Whitton's first successive postconviction motion seeking relief under Hurst v. State, 202 So. 3d 40 (Fla. 2016)); see also Whitton v. State, 824 So. 2d 171 (Fla. 2002) (table) (denying petition for writ of mandam…
Authorities Cited (12 total)
- 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)
- Whitton v. State, 649 So. 2d 861 (Fla. 1994)