          Supreme Court of Florida
                                      ____________

                                     No. SC17-1385
                                     ____________

                                     HARRY JONES,
                                       Appellant,

                                           vs.

                              STATE OF FLORIDA,
                                   Appellee.

                                     October 15, 2018

PER CURIAM.

      Harry Jones, a prisoner under sentence of death, appeals the circuit 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.

      Jones was convicted of the 1991 first-degree murder of George Wilson

Young, Jr. Jones v. State, 648 So. 2d 669, 672-73 (Fla. 1994), cert. denied, 515

U.S. 1147 (1995). The jury recommended a death sentence by a vote of ten to two,

and the trial judge followed the jury’s recommendation and imposed a sentence of

death. Id. at 673. We affirmed Jones’s conviction and death sentence on direct
appeal. Id. at 680. Jones’s sentence became final in 1995 when the United States

Supreme Court denied certiorari review. See Fla. R. Crim. P. 3.851(d)(1)(B)

(stating that for the purposes of filing postconviction claims under rule 3.851, a

judgment and sentence become final on the disposition of the petition for writ of

certiorari by the United States Supreme Court, if filed).

      In 2008, we affirmed the denial of Jones’s initial motion for postconviction

relief and denied his petition for a writ of habeas corpus. Jones v. State, 998 So. 2d

573 (Fla. 2008). In 2010, we affirmed the summary denial of Jones’s 2005

supplemental and 2007 successive postconviction claims. Jones v. State, 53 So. 3d

230 (Fla. 2010). In 2016, Jones filed a successive habeas petition in this Court

raising a claim based on Hurst v. Florida, 136 S. Ct. 616 (2016). On March 17,

2017, we denied the habeas petition. Jones v. Jones, No. SC16-607, 2017 WL

1034410 (Fla. Mar. 17, 2017). On January 11, 2017, despite having a habeas

petition pending in this Court, Jones filed a successive motion for postconviction

relief in the trial court raising four claims based on Hurst v. Florida and Hurst v.

State, 202 So. 3d 40 (Fla. 2016), cert. denied, 137 S. Ct. 2161 (2017). After this

Court denied Jones’s Hurst-related habeas petition on March 17, 2017, the trial

court denied his pending successive postconviction motion. This appeal follows.

During the pendency of this case in this Court, we directed the parties to file briefs

addressing why the circuit court’s order should not be affirmed based on our


                                         -2-
precedent in Hitchcock v. State, 226 So. 3d 216, 217 (Fla.), cert. denied, 138 S. Ct.

513 (2017), and we directed further briefing of Jones’s non-Hurst-related issues.

      In Hitchcock, we held that “our decision in Asay[ v. State, 210 So. 3d 1, 22

(Fla. 2016), cert. denied, 138 S. Ct. 41 (2017),] forecloses relief” under Hurst for

defendants whose convictions and sentences were final prior to the United States

Supreme Court’s decision in Ring v. Arizona, 536 U.S. 584 (2002). See also

Lambrix v. State, 227 So. 3d 112, 113 (Fla.) (rejecting Lambrix’s argument that the

Eighth Amendment, equal protection, and due process require that Hurst be

applied retroactively to Lambrix even though his sentences were final prior to

Ring), cert. denied, 138 S. Ct. 312 (2017). Thus, because his sentence became

final prior to Ring, Jones is not entitled to Hurst relief.

      Nor is Jones entitled to relief on his other claims. Jones’s claim that his

death sentence violates Caldwell v. Mississippi, 472 U.S. 320 (1985), and the

Eighth Amendment is foreclosed by our recent decision in Reynolds v. State, 2018

WL 1633075, 43 Fla. L. Weekly S163, S167-68 (Fla. Apr. 5, 2018), in which we

held that “a Caldwell claim based on the rights announced in Hurst and Hurst v.

Florida cannot be used to retroactively invalidate the jury instructions that were

proper at the time under Florida law” (citing Romano v. Oklahoma, 512 U.S. 1, 9

(1994)). And Jones’s argument that his previously rejected newly discovered

evidence claim should be revisited in light of our decision in Mosley v. State, 209


                                           -3-
So. 3d 1248 (Fla. 2016), requiring that in capital sentencing proceedings conducted

after Ring was decided in 2002, the jury must return a unanimous death

recommendation before a sentence of death may be imposed, is also foreclosed by

our recent decision in Walton v. State, 246 So. 3d 246, 249 (Fla. 2018). In Walton,

we concluded that such a claim was meritless and held that a proper cumulative

analysis of newly discovered evidence does not require consideration of changes in

the law that might apply if a new trial were granted. Thus, Jones is not entitled to

relief on this claim.

      Accordingly, we affirm the circuit court’s order summarily denying Jones’s

successive motion for postconviction relief.

      It is so ordered.

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

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND,
IF FILED, DETERMINED.

PARIENTE, J., concurring in result.

      I concur in result because I recognize that this Court’s opinion in Hitchcock

v. State, 226 So. 3d 216 (Fla.), cert. denied, 138 S. Ct. 513 (2017), is now final.

However, I continue to adhere to the views expressed in my dissenting opinion in




                                         -4-
Hitchcock that Hurst1 should apply retroactively to cases like Jones’s. Id. at 220-

23 (Pariente, J., dissenting). Applying Hurst to Jones’s case, I would grant a new

penalty phase based on the jury’s nonunanimous recommendation for death by a

vote of ten to two. Per curiam op. at 1.

An Appeal from the Circuit Court in and for Leon County,
     Angela C. Dempsey, Judge - Case No. 371991CF001932AXXXXX

Linda McDermott of McClain & McDermott, P.A., Estero, Florida,

      for Appellant

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

      for Appellee




      1. Hurst v. State (Hurst), 202 So. 3d 40 (Fla. 2016), cert. denied, 137 S. Ct.
2161 (2017).

                                           -5-
