FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF
from the Circuit Court in and for Volusia County, Raul
Antonio Zambrano, Judge - Case No. 642017CF101850XXXADL
Vincent Viggiano, Jr., Capital Collateral Regional Counsel,
Raheela Ahmed, Maria Christine Perinetti, and Lisa Marie
Bort, Assistant Capital Collateral Regional Counsel, Middle
Region, Temple Terrace, Florida, for Appellant.
Jo Bondi, Attorney General, Tallahassee, Florida, and Doris
Meacham, Assistant Attorney General, Daytona Beach, Florida,
Darcell Quince, a prisoner under sentence of death, appeals
the trial court's order summarily denying his successive
motion for postconviction relief, which was filed under
Florida Rule of Criminal Procedure 3.851. We have
jurisdiction. See art. V, § 3(b)(1), Fla.
Const. For the reasons we explain, we affirm the denial of
1980, Quince pleaded guilty to first-degree felony murder and
burglary of a dwelling and, after waiving his right to a
penalty phase jury, was sentenced to death. We affirmed
Quince's death sentence on direct appeal. Quince v.
State, 414 So.2d 185, 189 (Fla. 1982). Quince filed an
initial motion for postconviction relief, the denial of which
was eventually affirmed on appeal. See Quince v.
State, 732 So.2d 1059 (Fla. 1999); Quince v.
State, 592 So.2d 669 (Fla. 1992); Quince v.
State, 477 So.2d 535 (Fla. 1985). We also affirmed the
denial of a successive motion for postconviction relief, in
which Quince sought to vacate his death sentence on the
ground that he is ineligible for the death penalty due to
intellectual disability. Quince v. State, No.
SC11-2401, 2012 WL 6197458, at *1-2 (Fla. Dec. 10, 2012) (116
So.3d 1262 (table)).
January 9, 2017, Quince filed another successive motion for
postconviction relief in light of Hurst v. Florida,
136 S.Ct. 616 (2016), which is the subject of this appeal.
After holding a case management conference, the trial court
summarily denied Quince's successive motion on two
grounds. First, because Quince's sentence became final on
October 4, 1982, when the United States Supreme Court denied
his petition for a writ of certiorari, the trial court
concluded that Quince was not entitled to relief based on our
decision in Asay v. State, 210 So.3d 1, 22 (Fla.
2016), cert. denied, 138 S.Ct. 41 (2017), holding
that Hurst does not apply retroactively to
defendants whose death sentences became final before the
issuance of Ring v. Arizona, 536 U.S. 584 (2002), on
June 24, 2002. Second, because Quince knowingly,
intelligently, and voluntarily waived his right to a penalty
phase jury, the trial court concluded that Quince was not
entitled to relief based on our decision in Mullens v.
State, 197 So.3d 16, 40 (Fla. 2016), cert.
denied, 137 S.Ct. 672 (2017), holding that a defendant
who waives his Sixth Amendment right to jury factfinding in
his sentencing proceeding is not entitled to relief under
Hurst. After Quince filed his notice of appeal in
this Court, we directed the parties to file briefs addressing
why the trial court's order denying the successive motion
should not be affirmed based on Mullens.
Mullens, we held that a defendant "cannot
subvert the right to jury factfinding by waiving that right
and then suggesting that a subsequent development in the law
has fundamentally undermined his sentence." 197 So.3d at
40. We have since consistently relied on Mullens to
deny Hurst relief to defendants who waived a penalty
phase jury. E.g., Covington v. State, 228
So.3d 49, 69 (Fla. 2017); Knight v. State, 211 So.3d
1, 5 n.2 (Fla. 2016); Robertson v. State, No.
SC16-1297, 2016 WL 7043020, at *1 n.1 (Fla. Dec. 1, 2016)
(unpublished); Davis v. State, 207 So.3d 177, 212
(Fla. 2016), cert. denied, 137 S.Ct. 2218 (2017);
Brant v. State, 197 So.3d 1051, 1079 (Fla. 2016).
Quince made a valid waiver of his right to a penalty phase
jury, and his arguments here do not compel a departure from
our precedent. Accordingly, because Quince waived his right
to a penalty phase jury, he is not entitled to Hurst
because Quince's sentence became final nearly twenty
years before Ring was decided, his Hurst
claim is also foreclosed by our decision in Asay.
See Hitchcock v. State, 226 So.3d 216, 217 (Fla.),
cert. denied, No. 17-6180, 2017 WL 4355572, (U.S.
Dec. 4, 2017); Asay, 210 So.3d at 22; see
also Lambrix v. State, 227 So.3d 112, 113
(Fla.) (rejecting argument that the Eighth Amendment, equal
protection, and due process require that Hurst be
applied retroactively to defendant whose sentences were final
prior to Ring), cert. denied, 138 S.Ct. 312
(2017). We therefore affirm the trial court's order
denying Quince's successive motion for postconviction
LABARGA, C.J., and LEWIS, QUINCE, POLSTON, and LAWSON, JJ.,
concur PARIENTE, J., concurs in result with an opinion
CANADY, J., concurs in result.
PARIENTE, J., concurring in result.
concur in result based on this Court's opinion in
Mullens v. State, 197 So.3d 16 (Fla. 2016),
cert. denied, 137 S.Ct. 672 (2017), but adhere to my
view that Hurst should be retroactive without the
cut-off date of the United States Supreme Court's
decision in Ring v. Arizona, 536 U.S. 584 (2002).
See Asay v. State (AsayVI), 224
So.3d 695, 708-09 (Fla. 2017) (Pariente, J., ...