Appeal from the Circuit Court in and for Pinellas County,
Frank Quesada, Judge - Case No. 521985CF007084XXXXNO
Vincent Viggiano, Jr., Capital Collateral Regional Counsel,
Chelsea Rae Shirley, Maria E. DeLiberato, and Julissa R.
Fontán, Assistant Capital Collateral Regional Counsel,
Middle Region, Temple Terrace, Florida, for Appellant
Jo Bondi, Attorney General, Tallahassee, Florida, and
Christina Z. Pacheco, Assistant Attorney General, Tampa,
Florida, for Appellee
for review James Milton Dailey's appeal of the circuit
court's order denying Dailey's motion filed pursuant
to Florida Rule of Criminal Procedure 3.851. This Court has
jurisdiction. See art. V, § 3(b)(1), Fla.
motion sought relief pursuant to the United States Supreme
Court's decision in Hurst v. Florida, 136 S.Ct.
616 (2016), and our decision on remand in Hurst v.
State (Hurst), 202 So.3d 40 (Fla. 2016),
cert. denied, 137 S.Ct. 2161 (2017). Dailey
responded to this Court's order to show cause arguing why
Hitchcock v. State, 226 So.3d 216 (Fla.), cert.
denied, 138 S.Ct. 513 (2017), should not be dispositive
in this case.
reviewing Dailey's response to the order to show cause,
as well as the State's arguments in reply, we conclude
that Dailey is not entitled to relief. Dailey was sentenced
to death following a jury's unanimous recommendation for
death. Dailey v. State, 594 So.2d 254, 256 (Fla.
1991). On appeal, this Court reversed Dailey's death
sentence and "remand[ed] for resentencing before the
trial judge." Id. at 259. On remand, the trial
court again sentenced Dailey to death, and Dailey's
sentence of death became final in 1996. Dailey v.
State, 659 So.2d 246, 247 (Fla. 1995), cert.
denied, 516 U.S. 1095 (1996). Thus, Hurst does
not apply retroactively to Dailey's sentence of death.
See Hitchcock, 226 So.3d at 217. Accordingly, we
affirm the denial of Dailey's motion.
Court having carefully considered all arguments raised by
Dailey, we caution that any rehearing motion containing
reargument will be stricken. It is so ordered.
LABARGA, C.J., and LEWIS, POLSTON, and LAWSON, JJ., concur.
CANADY, J., concurs in result
QUINCE, J., recused.
PARIENTE, J., concurring in result.
reasons I have explained numerous times, despite this
Court's precedent, I would apply
Hurst retroactively to Dailey's sentence of
death. See Hitchcock v. State, 226 So.3d 216, 220-23
(Fla.) (Pariente, J., dissenting), cert. denied, 138
S.Ct. 513 (2017); Asay v. State (Asay V),
210 So.3d 1, 32-37 (Fla. 2016) (Pariente, J., concurring in
part and dissenting in part), cert. denied, 138
S.Ct. 41 (2017). Applying Hurst to Dailey's
case, although the jury unanimously recommended death,
because this Court struck two aggravators on direct appeal,
the Hurst error in Dailey's case was not
harmless beyond a reasonable doubt. Dailey v. State,
594 So.2d 254, 259 (Fla. 1991). In fact, relying on its
arbitrary retroactivity framework, this Court turns a blind
eye to the quintessential Hurst error-a defendant,
without waiver, sentenced to death by a trial judge alone
without a jury's reliable, unanimous recommendation for
death. See Dailey v. State, 659 So.2d 246, 247 (Fla.
1995), cert. denied, 516 U.S. 1095 (1996); see
also Davis v. State, 207 So.3d 142, 173-75 (Fla 2016);
Hurst, 202 So.3d at 44.
1991, after Dailey's penalty phase before a jury, this
Court determined that the trial court made several errors in
sentencing Dailey to death. See generally Dailey,
594 So.2d 254. In pertinent part, this Court determined that
the evidence did not establish two aggravating factors that
the trial court considered: (1) "that the murder was
committed to prevent a lawful arrest," and (2)
"that the murder was committed in a cold, calculated,
and premeditated manner." Id. at 259. Further,
this Court determined that the trial court erred in
"recogniz[ing] the presence of numerous mitigating
circumstances, but then accord[ing] them no weight at
all." Id. Accordingly, this Court reversed
Dailey's sentence of ...