Tribunal No(s).: 481996CF005639000AOX
Motion for Rehearing is hereby denied.
LABARGA, CJ, and LEWIS, QUINCE, CANADY, POLSTON, and LAWSON,
PARIENTE, J, concurring in result.
concur in the denial of rehearing because I recognize that
this Court's decisions regarding
Hurst retroactivity are final. I write
separately to emphasize how this case demonstrates the
unconstitutional arbitrariness created by this Court's
Ring cutoff. See Evans v. State, 43
Fla.L.Weekly S29 (Fla. Jan. 24, 2018).
was convicted of first-degree murder for crimes committed on
April 26, 1996, and sentenced to death following a jury's
nonunanimous recommendation for death. Evans v.
State, 800 So.3d 182, 185-86 (Fla. 2001). This
Court's opinion on direct appeal in October 2001 affirmed
Evans' first-degree murder conviction and sentence of
death. Id. at 187. This Court denied rehearing in
December 2001. Id.
this Court's opinion on direct appeal, Evans'
counsel, George Burden, an assistant public defender who has
handled many capital appeals, attempted to file a petition
for a writ of certiorari with the United States Supreme
Court. According to a letter from the United States Supreme
Court to Mr. Burden dated April 22, 2002, the Supreme Court
received the petition on March 20, 2002, but returned it for
failure to comply with several Supreme Court rules. The
Supreme Court's letter gave Mr. Burden sixty days to
"correct and resubmit" the petition; otherwise,
"the petition [would] not be filed." Sixty days
from the date of the Supreme Court's letter was June 22,
2002. For "unknown reasons, " neither Evans nor Mr.
Burden submitted a corrected petition to the United States
Supreme Court. Mot. for Reh'g at 2. As a result, this
Court determined in its January 24, 2018, opinion that
Evans' sentence of death became final in March 2002.
Evans, 43 Fla.L.Weekly at S29; see Fla. R.
Crim. P. 3.851(d)(1). Accordingly, this Court denied
Evans' claim to Hurst relief pursuant to
motion for rehearing, Evans argues that this Court should
grant rehearing for two reasons: (1) this Court's January
24, 2018, opinion incorrectly determined that his sentence of
death became final in March 2002, and (2) "[a]t the very
least, this Court should remand this case for an evidentiary
hearing to determine whether [Evans'] mental illness was
a factor in the non-refiling of the certiorari petition"
with the United States Supreme Court. Mot. for Reh'g at
2. Each is addressed in turn below.
Date Evans' Sentence of Death Became Final
Evans argues that this Court should have determined that his
sentence of death became final on June 22, 2002-the deadline
given by the United States Supreme Court for refiling
Evans' petition for a writ of certiorari from this
Court's opinion on direct appeal. Evans further argues
that this Court's Ring cutoff for determining
Hurst retroactivity is arbitrary and capricious
because, had Mr. Burden refiled the petition by the Supreme
Court's deadline, it would have been pending when the
Supreme Court decided Ring days later. Resp. to This
Ct's Order to Show Cause at 2. In turn, Evans argues,
this Court would have applied Hurst retroactively to
his sentence of death. See Mosley v. State, 209
So.3d 1248, 1283 (Fla. 2016). While I believe that the Court
properly determined that Evans' sentence became final in
March 2002 due to the absence of a properly filed petition
for a writ of certiorari, I also agree with Evans that his
case rises and falls on "a fatal accident of
timing" that demonstrates the unconstitutional
arbitrariness created by this Court's Ring
cutoff. Resp. to This Ct's Order to Show Cause at 8.
days after the Supreme Court's sixty-day deadline in
Evans' case, on June 24, 2002, the Supreme Court decided
Ring. Had Evans or Mr. Burden properly sought
certiorari in March or corrected the petition by the June 22
deadline, the date of the United States Supreme Court's
subsequent decision, assuming it was a denial of certiorari,
would have served as the date Evans' conviction and
sentence became final. Presumably, under either of these
circumstances, Evans would have fallen on the other side of
this Court's Ring cutoff and would, therefore,
be entitled to the retroactive application of Hurst.
Thus, Evans' case shows how this Court's
Ring cutoff for Hurst retroactivity creates
arbitrariness that has no proper place in death penalty
Justice Perry explained, dissenting in Asay V, the
majority's retroactivity decisions determined "that
in capital cases where the Sixth Amendment rights of hundreds
of persons were violated, it is appropriate to arbitrarily
draw a line between June 23 and June 24, 2002-the day before
and the day after Ring was decided." 210 So.3d
at 38 (Perry, J., dissenting). Likewise, in my concurring in
part and dissenting in part opinion in Asay V, I
explained that "[t]he majority's conclusion results
in an unintended arbitrariness as to who receives relief