JEREMIAH M. RODGERS, Appellant,
STATE OF FLORIDA, Appellee.
FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF
Appeal from the Circuit Court in and for Santa Rosa County,
John F. Simon, Jr., Judge - Case No. 571998CF000274XXAXMX
H. Nolas, Chief, Capital Habeas Unit, Office of the Federal
Public Defender, Northern District of Florida, Tallahassee,
Florida, for Appellant
Jo Bondi, Attorney General, and Charmaine M. Millsaps, Senior
Assistant Attorney General, Tallahassee, Florida, for
G. Abudu, Daniel B. Tilley, and Jacqueline Nicole Azis of
ACLU Foundation of Florida, Inc., Miami, Florida,
Curiae American Civil Liberties Union Foundation of Florida,
M. Rodgers, a prisoner under sentence of death who waived a
penalty phase jury, appeals the circuit court's summary
denial of a postconviction motion filed pursuant to Florida
Rule of Criminal Procedure 3.851 seeking sentencing 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). We have
jurisdiction. See art. V, § 3(b)(1), Fla.
consistently held that the Hurst decisions do not
apply to defendants, like Rodgers, who waive a penalty phase
jury. See, e.g., Mullens v. State, 197
So.3d 16, 40 (Fla. 2016) (affirming the death sentence of a
defendant who waived a penalty phase jury and explaining 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"), cert. denied, 137
S.Ct. 672 (2017); Brant v. State, 197 So.3d 1051,
1079 (Fla. 2016) (concluding that the Mullens
Court's holding in the context of a direct appeal
"necessarily preclude[s]" a defendant who waived a
penalty phase jury from raising a Hurst claim on
however, seeks to avoid this result by attacking the waiver
itself, arguing that an evidentiary hearing is required to
determine if a recently diagnosed condition of gender
dysphoria, which Rodgers contends existed at the time of the
waiver, but went undiagnosed by prior evaluators, rendered
Rodgers incompetent. We agree with the circuit court that the
time for Rodgers to contest the prior competency
determination has passed. See Fla. R. Crim. P.
3.851(d)(1). This Court has long since affirmed Rodgers'
waiver of a penalty phase jury, see Rodgers v.
State, 3 So.3d 1127, 1131-33 (Fla. 2009), and Rodgers
has not proffered any newly discovered evidence that would
warrant revisiting the validity of this waiver. Cf.
Raleigh v. State, 932 So.2d 1054, 1060 (Fla. 2006)
(recognizing a "narrow exception to th[e] general
procedural bar" of allowing an Ake v. Oklahoma,
470 U.S. 68 (1985)-type claim of inadequate mental health
assistance that should have been raised on direct appeal to
instead be raised on postconviction for only those cases
involving "psychiatric examinations so grossly
insufficient that they ignore clear indications of either
mental retardation or organic brain damage") (quoting
State v. Sireci, 502 So.2d 1221, 1224 (Fla. 1987)).
we affirm the circuit court's summary denial.
LABARGA, CJ, and LEWIS, QUINCE, CANADY, POLSTON, and ...