          Supreme Court of Florida
                                   ____________

                                   No. SC18-646
                                   ____________

                         EDWARD J. ZAKRZEWSKI, II,
                                Appellant,

                                          vs.

                              STATE OF FLORIDA,
                                   Appellee.

                                 September 20, 2018

PER CURIAM.

      We have for review Edward J. Zakrzewski’s appeal of the circuit court’s

order denying Zakrzewski’s motion filed pursuant to Florida Rule of Criminal

Procedure 3.851. This Court has jurisdiction. See art. V, § 3(b)(1), Fla. Const.

      Zakrzewski’s 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). Zakrzewski 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.
      After reviewing Zakrzewski’s response to the order to show cause, as well as

the State’s arguments in reply, we conclude that our prior denial of Zakrzewski’s

petition for a writ of habeas corpus raising similar claims is a procedural bar to the

claims at issue in this appeal. All of Zakrzewski’s claims depend upon the

retroactive application of Hurst, to which we have held he is not entitled. See

Zakrzewski v. Jones, 221 So. 3d 1159, 1159 (Fla. 2017); Hitchcock, 226 So. 3d at

217. Accordingly, we affirm the denial of Zakrzewski’s motion.

      The Court having carefully considered all arguments raised by Zakrzewski,

we caution that any rehearing motion containing reargument will be stricken. It is

so ordered.

CANADY, C.J., and LEWIS, QUINCE, POLSTON, LABARGA, and LAWSON,
JJ., concur.
PARIENTE, J., concurs in result with an opinion.

PARIENTE, J., concurring in result.

      I agree with the per curiam opinion that we have formerly denied

Zakrzewski relief pursuant to Hitchcock,1 which, of course, is now final. However,

I write separately to emphasize the jury override in Zakrzewski’s case.

      Following the penalty phase, the jury in Zakrzewski’s case recommended

two sentences of death—both by a vote of seven to five—and one sentence of life


      1. Hitchcock v. State, 226 So. 3d 216 (Fla.), cert. denied, 138 S. Ct. 513
(2017).


                                         -2-
by a vote of six to six. Nevertheless, the trial court sentenced Zakrzewski to three

sentences of death, thereby overriding the jury’s recommendation for life on the

final sentence. See Asay v. State (Asay V), 210 So. 3d 1, 29 n.19 (Fla. 2016), cert.

denied, 138 S. Ct. 41 (2017) (Labarga, C.J., concurring); id. at 35 n.32 (Pariente,

J., concurring in part and dissenting in part).

      As I expressed in Asay V, “the jurisprudence on the acceptability of judicial

overrides has so dramatically changed” since sentences like Zakrzewski’s were

finalized. Id. at 35 n.32 (Pariente, J., concurring in part and dissenting in part).

Hurst2 made clear that jury overrides are unconstitutional, and, likewise, jury

overrides are not permitted under Florida’s current capital sentencing scheme. See

§ 921.141, Fla. Stat. (2018).

An Appeal from the Circuit Court in and for Okaloosa County,
     John T. Brown, Judge - Case No. 461994CF001283XXXAXX

Martin J. McClain of McClain & McDermott, P.A., Wilton Manors, Florida,

      for Appellant

Pamela Jo Bondi, Attorney General, and Charmaine M. Millsaps, Senior Assistant
Attorney General, Tallahassee, Florida,

      for Appellee




      2. Hurst v. State (Hurst), 202 So. 3d 40 (Fla. 2016), cert. denied, 137 S. Ct.
2161 (2017); see Hurst v. Florida, 136 S. Ct. 616 (2016).

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